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* »* 



The Development of a Residential 

Qualification for Representatives 

in Colonial Legislatures 



BY 

HUBERT PHILLIPS, Ph.D. 



CINCINNATI 

PRINTED FOR THE AUTHOR BY 

THE ABINGDON PRESS 






\t^ 



COPYRIGHT 1921 

BY 
HUBERT PHILLIPS 



^^^ /9/92/g)CU624395 



n-i^ I 



TO ONE NOW GONE, 

WITHOUT WHOSE INSPIRATION AND SACRIFICE 

THE COMPLETION OF THIS WORK 

WOULD NOT HAVE BEEN 

POSSIBLE 



FOREWORD 

Geographically this study only covers the colonies which 
later became known as the Thirteen Original Colonies, 

In point of time it extends from the period of first settle- 
ment down to the end of the colonial period. In most of 
the colonies the requirement that a representative must be a 
resident of the district he represents was incorporated into 
the Revolutionary constitutions. In those colonies where 
this was not done the study has been continued, but not in 
detail into the period of statehood. 

At the very beginning some space has been given to a 
survey of English Constitutional history so far as it relates 
to the subject in hand. 

This is justified by the close relationship, racial, social and 
institutional, which existed between the colonies and the 
mother country ; a relationship so vital that we should expect 
to find every developing colonial institution to have a direct 
connection with some already well-developed English practice. 



CONTENTS 

CHAPTER PAGE 

I. General Observations and Comparisons with 

English Practice - 11 

II. Massachusetts _-_ 18 

III. New Plymouth 42 

IV. New Hampshire 46 

V. Rhode Island - - 61 

VI. Connecticut ---- 80 

VII. New Haven 93 

VIII. New York --....... 95 

IX. New Jersey 130 

X. Pennsylvania 149 

IX. Delaware _._.. 151 

XII. Maryland - 169 

XIII. Virginia 186 

XIV. North Carolina - - - - - - - - 201 

XV. South Carolina - - - 215 

XVI. Georgia 234 

XVII. Conclusion 244 



The Development of a Residential 

Qualification for Representatives in 

Colonial Legislatures 



GENERAL OBSERVATIONS AND COM- 
PARISON WITH ENGLISH 
PRACTICE 

In the United States to-day the invariable custom is that a 
representative must be a resident of the district he represents. 

In the case of representatives and senators in the state 
legislatures this requirement is often by law but quite often 
by custom. 

In the case of United States Representatives the only 
legal residence requirement is that they shall be residents of the 
states from which they are elected.^ 

A few states have passed laws requiring a United States 
Representative to be a resident of his district, but 

. . . "the best legal authorities hold that a provision of this 
kind is invalid because state law has no power to narrow the 
qualifications for a Federal representative prescribed by the 
Constitution of the United States."^ 

Congress would probably so decide the question should it 
come before it, but the point has never arisen.^ 

So our present practice, though based upon custom, has 
fastened itself so strongly upon our political life that no 
candidate, no matter what his fame or abilities, could possibly 
be elected from a district in which he did not reside. The 
proof of this statement lies in the fact, that despite the 
eagerness with which men seek public office we never hear 
of a "receptive" candidate having the courage to attempt to 
stem the current of this traditional custom.* 

' U. S. Constitution, Art. I, Sec. 2. 
2 Bryce, I, 191. 

• In several places I have found references to certain exceptions in practice, to this 
custom. If these were definite they would be both interesting and instructive, but so far 
I have been unable to verify them. Among these are the following: 

(a) New England has had one or two examples of men representing districts in 
Congress in which they did not live. 

(b) In New York and Chicago there have been cases of men representing Congres- 
sional districts which lie in a different part of the city than that in which they reside. 

(c) A case of a Representative, who, soon after his election moved to another 
district but by force of public opinion was forced to resign. 

* A story out of American political life of an attempt to disregard this rule of residence 
comes down to us on the authority of John Hay. When James A. Garfield was one of the 

11 



12 GENERAL OBSERVATIONS 

Now this practice seems to us Americans the only reason- 
able and practicable one, and one so necessary, if a representa- 
tive is to be held responsible to his constituents, that we never 
give it a second thought. Only when we consider that our 
practice in this regard differs from that of all the leading 
nations of the world which have representative assemblies, 
are we brought to ask ourselves How? and Why? is our 
practice so different. 

In the Reichstag of Germany, in the Chamber of Deputies 
of France, in the English House of Commons, and even in 
both the House of Commons and Senate of Canada a local 
district is allowed to go anywhere in the realm for its repre- 
sentative and often does so. 

With France and Germany we are not so closely concerned. 
But why in this one political custom we differ so from the 
mother country, or coming closer home, why this difference 
between us and our neighbor on the north, both recipients of 
a common political heritage and on the same continent where 
propinquity might be supposed to bring common political 
practices? These questions seem interesting enough to de- 
mand an answer. 

"One of the phenomena that attracts the attention of the 
student of colonial institutions is the way in which the settlers 
repeated certain arrangements of the mother country and did 
not reproduce others. They modelled their criminal code on 
that of England, they based their local government on that 
of the home land, but they built up their representative 
systems entirely anew." ^ 

While this gives us a good idea of some of the contrasts in 
colonial political action yet it is not quite accurate. Another 
American political writer sums up the matter admirably. 

"Early in the history of the colonies variations in English 
methods began which eventually came to be regarded as 

leaders of the House of Representatives it became doubtful if his district would return him 
at the approaching election because of the strength of the opposite party. So Mr. Hay 
went into an adjoining district to sound the voters there as to the propriety of running Mr. 
Garfield from their district. Although it is probable that there was no local man of Gar- 
field's ability in that district yet everywhere Hay met with the reply, 

. . . "Why, he does not live in our district." 

Bryce, I, 194, Note. s Channing, History of U. S., HI, 74. 



GENERAL OBSERVATIONS 13 

American characteristics; but Americanisms in politics, like 
Americanisms in speech, are apt to be Anglicanisms which died 
out in England but survived in the New World." ^ 

All writers on English Constitutional History agree that 
the original English practice was for a member of the House 
of Commons to be a resident of the county or borough which 
returned him. Stubbs calls this a requirement of the Common 
Law. That it was the case can be seen from the words "de 
comitatu tuo" in the writs of election addressed to the sheriffs 
of the counties. 

The first English statute restricting the counties to the 
return of a resident as a member of the House of Commons 
was 1 Henry V,^ and is perhaps a sign that some deviation 
from the original practice had already sprung up. This law 
was followed by several others on the main subject of Elections, 
the principal one of which was that 8 Henry VI,* by which 
both electors and elected were to be actually resident in the 
county.^ 

It seems to be a point of uncertainty with all writers on 
the English Constitution as to just when these laws began to 
be evaded. Some think as early as the following reign, that 
of Edward IV.^° Uncertain as this is we are sure that by 
the time of Elizabeth^^ they were quite" generally disobeyed, 
for in 1571 we find a bill introduced in the House of Com- 
mons, the intent of which was to repeal as to the boroughs 
the statute of Henry V and to legalize the innovation which 
had sprung up. 

The bill appears to have been dropped, but the debate 
on it which occurred on April 19th has been preserved for us 
in D'Ewes' Journal.^^ The supporters of the bill advanced 
the argument that a man could not be presumed to be wiser 
for being a resident burgess, and also that the whole body of 
the realm and its service was more important and more to be 
respected than any private regard of place or person. 

« Lord, Rise and Growth of American Politics, I, 5. '» (1461-1483.) 

' (1413-1422.) 11 (1558-1603.) 

• (1422-1461.) n D'Ewes' Journal, 168-171. 
. » Taswell Langmead, 314. 



14 GENERAL OBSERVATIONS 

"This," says Hallam/^ "is a remarkable, and perhaps the 
earliest assertion, of an important constitutional principle, 
that each member of the House of Commons is deputed to 
serve not only his constituents but for the whole kingdom; 
a principle which marks the distinction between a modern 
English Parliament and such deputation of the estates as 
were assembled in several continental kingdoms; a principle 
to which the House of Commons is indebted for its weight 
and dignity, as well as its beneficial efficiency, and which 
none but the servile worshippers of the populace are even 
found to gainsay."^* 

Those who took the other side of the question argued 
that the rights and privileges of the "common man" ought 
to have more consideration, but their main argument was the 
interference of noblemen in elections in favor of non-resident 
nominees. ^^ 

The longest speech recorded in the debate was made by 
some unnamed orator in opposition to the bill. The argu- 
ment which he advanced in the following quotation is without 
doubt the one that would be most commonly used by those 
who believed in the residential qualification. He said: 

"We who have never seen Berwick or St. Michael's Mount 
can but blindly guess of them, albeit we look on the Maps 
that came from thence, or see Letters of Instruction sent; 
some one whom Observation, Experience, and due Considera- 
tion of that Country hath taught, can more perfectly open 
what shall in question thereof grow, and more effectually 
reason thereupon, than the skillfullest otherwise whatsoever. "^^ 

Bishop Stubbs says that it was due to the political jeal- 
ousies of the Tudor times that strangers began to covet and 
canvass for borough membership and began to encourage the 
towns to violate the provisions of the act of Henry V. This 
statute was often evaded by the admission of candidates to 
free burgership.^^ 

" Hallam, I, 266. 

" If this view of representation existed in the United States the representatives in 
Congress would be elected by each state at large — a practice which is only followed when 
an election comes so soon after a reapportionment of representatives that the state cannot 
be districted. 

"Taswell Langmead, 314-315. i« D'Ewes' Journal, 169. 

" The boroughs were much greater offenders in violating the resident act than were 
the counties. Representation of counties by non-residents did not develop till after the 
custom was well established in the boroughs. 



GENERAL OBSERVATIONS 15 

We find that at Lynn in 1603, Robert Hitcham, Esquire, 
who had been elected was required to come and be made a 
free burgess of the town. And in 1613 Hitcham and Sir 
Henry Spelman, both non-residents, sought election as 
representatives of the town. The corporation replied that 
they intended to obey the statute of Henry V and elected 
two citizens.^^ There was another example of this practice 
which perhaps changed or at least affected the course of 
English history. In 1640 Cromwell was living at Ely but was 
desirous of entering the House of Commons as a representa- 
tive from Cambridge. The only difficulty in the way of this 
project was that he was not a freeman of that borough. 
This difficulty was surmounted by the Mayor of Cambridge 
making him a freeman 'gratis' on the payment of one penny 
into the poor fund. These preliminaries having been ar- 
ranged he was duly elected a member of the first Parliament 
of 1640, on March 25 of that year.^^ 

The laws of 1413, 1429, 1432, and 1444-45 were repealed 
in 1774. Parliament in that year declared that the above Acts 

"have been found by long usages to be unnecessary and have 
become obsolete" 

. . . and so in order to 

.' . . "obviate all doubt that may arise upon the same" 

the statute books were cleared of all enactments relating 

"to the residence of persons to be elected to serve in Parlia- 
ment or of the persons by whom they are to be chosen." ^° 

By the words of the above act it will be seen that voting 
by non-resident electors was also legalized. This custom had 
grown up simultaneously with that of electing non-resident 
representatives. It was almost a necessary adjunct of the 
latter for many times a candidate had to bring a large number 
of supporters with him on election day if he hoped to carry 
the election. 

The question that now presents itself for consideration is 

"Stubbs. Ill, 439. 

»» Porritt, I, 61: Sandford, Studies and Illustrations of the Great Rebellion. 

»° Porritt, I, 122: 14 George III, C. 58. 



16 GENERAL OBSERVATIONS 

why should such a custom as this one we have been studying, 
grow up in the face of law after law on the subject? The 
answer can be given perhaps in the following three reasons: 

(a) In an early day it was considered a hardship not an 
honor to serve in Parliament. So this office became open to 
professional candidates.^^ 

(b) To the practice of borough mongering by which some 
candidate unconnected with the place was sent down as a 
representative by some influential person of the borough. 
This grew up as a result of the great social changes in England 
during the seventeenth century at which time there was a 
great shift of population, causing large cities to spring up in 
northwestern England and leaving once populous boroughs 
practically uninhabited. 

(c) The direct purchase of the seat from the corrupt 
corporation or from the limited body of freemen. ^^ 

Even down to 1885 it was quite generally recognized that 
a candidate for Parliament should either be a resident of the 
county or at least own property there; in fact, a freehold 
qualification existed until 1858. But to-day it is a well 
recognized fact in England that a man may offer himself for 
election in any borough or county regardless of his place of 
residence.^^ 

We have noted three reasons for the beginning and 
growth of the practice of non-resident, representation. But 
when these reasons have all disappeared by reason of im- 
proved social conditions and the Reform Bill of 1832, we 
find no change in the practice. In fact such a custom is 
practically necessary under the Cabinet system of England; 

" An illustration of the indifference of the boroughs to representation is shown by the 
incident of Torrington in Devonshire, which even obtained a charter exempting it from 
sending burgesses to Parliament — Hallam, Middle Ages, III, 115. 

In an early day the boroughs had to resort to an official called manucaptor whose 
duty is was to see that the elected representative rendered service. Porritt, I, 5-6. 

" The abuses in the above were remedied by the Reform Bill of 1832, although it did 
not affect the resident feature. 

28 A few years ago a man who was a candidate for Parliament naively told Mr. Bryce 
that he thought a candidate should at least live near enough to the county in which he 
was a candidate that he could look into it from his window while shaving in the morning. 
This particular man's view was probably influenced by the fact that his house lay just 
outside the county in which he was a candidate. 



GENERAL OBSERVATIONS 17 

for the ministers are necessarily members of the House of 
Commons. Oftimes a man who has attained great eminence 
in some particular field of government is defeated for re- 
election in his home district because of some temporary local 
dissatisfaction. 2^ But the English view, which differs so much 
from that of the United States, is that no local opposition 
must be allowed to rob the country as a whole of the services 
of a very eminent man, therefore, he can stand for election 
in any district of the kingdom. 

It is interesting, and not altogether idle, to speculate on 
which of these two systems, the English or that of the United 
States, flowing from a common source, is the most natural 
development for a free country. No less an authority than 
Mr. Bryce gives as his opinion that the English practice 
seems to be an exception due to special causes, while the 
practice in the United States is that which one would naturally 
expect to find in a free country where local self-government is 
fully developed. And yet, after all, he feels that it would make 
for better government if we should follow the English plan. 

"That the restriction often rests on custom, not on law, 
makes the case more serious. A law can be repealed, but 
custom has to be unlearned ; the one may be done in a moment 
of happy impulse, the other needs the teaching of long ex- 
perience applied to receptive minds." 

"The fact is that the Americans have ignored in all their 
legislative, as in many of their administrative arrangements, 
the differences of capacity between man and man. They 
underrate the difficulties of government and overrate the 
capacities of the man of common sense. Great are the bless- 
ings of equality; but what follies are committed in its name." ^^ 



" Of the last five prime ministers who have sat in the House of Commons not a one 
has represented his place of residence. Bryce, I, 183. David Lloyd George represented 
his home constituency when made prime minister. 

» Bryce, I, 487. 



MASSACHUSETTS 

In order properly to understand the system of representative 
government which existed in Massachusetts it will be well to 
review briefly the origin and constitution of the general court, 
for by that name has the legislature of Massachusetts been 
known from colonial times down to the present. The Com- 
pany of Massachusetts Bay was a corporation, the governing 
body of which was the general court. Its officers were a 
governor, deputy governor and eighteen assistants, all to be 
chosen out of the freemen of the company^ and by the freemen 
of the company in annual election. The composition of the 
court is shown by the following: 

"And that any seven or more persons of the Assistants, to- 
gether with the Governor or Deputie Governor, soe as- 
sembled, shalbe saide, taken, helde and reputed to be, and 
shalbe, a full and sufficient Courte or Assemblie . . . for the 
handling, ordering and dispatching of all business . . . ." ^ 

In March, 1629, the company received a royal charter,^ 
confirming the territorial grant which it had received from the 
New England Council the March previous.* By this charter 
full governmental and corporate rights were bestowed upon 
the company. The charter provided for four annual sessions 
of the general court; the last Wednesday in Hilary, Easter, 
Trinity, and Michaelmas.^ The general court was to have 
the power of making laws and the only check imposed upon 
it was that they were not to be repugnant to the statutes of 
England.^ 

For a year after the charter was granted to the company 
it remained in England. During this time the general court 
met at various times but the business transacted was only 
such business as any company interested in a colonization 
scheme would need to perform. But when in March, 1630, 
the company with its charter removed to America, by the mere 



» Mass. Col. Records, I, 10. 


« Ibid., 


. I, 4. 


'Ibid., I. 11. 


' Ibid., 


. I. 11. 


> Ibid.. I, 6-8. 


• Ibid., 


, I, 12. 



18 



MASSACHUSETTS 19 

act of removal the corporation became a colony and the 
general court became the law-making body of that colony. We 
might also say that under the new conditions the term "free- 
man" is synonomous with "stockholder" of the company as 
first organized. The corporation was not a closed one, so the 
number of the members constituting it could be indefinitely 
enlarged. The power to admit freemen was in the general 
court.^ 

Not all who came with Winthrop and his associates were 
freemen in the sense of being members of the corporation. 
Besides there were inhabitants already on the ground. In 
1630 the officials of the company, that is, governor and 
magistrates, were practically all the members of the cor- 
poration residing in Massachusetts.^ But at the first general 
court held at Boston, October 19, 1630, a large number of 
persons, some of them old planters, petitioned for admission 
as freemen.^ These not only were not admitted but the 
officials of the colony drew themselves into a still more 
compact oligarchy in direct violation of charter. The court 
declared that assistants should be chosen by the freemen but 
that the governor should be elected by the assistants and from 
among their own number, also that the governor and assistants 
should have the power to make and execute laws, and levy 
taxes.^" It was as a result of the protest against this as- 
sumption of extra-charter powers that the system of deputy 
representation came into existence four years later.^^ Another 
important factor in this was the rapid extension of settle- 
ments which made it very laborious, if not impossible, for the 
freemen to attend the general court in person and also the 
great increase in the number of freemen. 

The years between 1630 and 1634 were years of rapid 
development of the general court into a representative 
assembly. At the general court which met on May 18, 1631, 
a most important act was passed acknowledging the violation 

» Mass. Col. Records, I, 11. ' Palfrey, I, 323. 

• The student of colonial history will understand that this term "freemen" is not used 
in contradistinction to the word slave or servant. By it is meant a man with full political 
rights and privileges. 

'» Mass. Col. Recs., I, 79. " Osgood, I, 156. 



20 MASSACHUSETTS 

of the charter in the act of the October previous, and pro- 
viding that 

"... once every year, att least, a generall courte shalbe 
holden, att which Court it shalbe lawfuU for the commons to 
ppound any pson or psons whome they shall desire to be 
chosen Assistants, etc." ^^ 

The act goes on to state that a majority of the "commons" 
shall so elect and also that if they shall see cause they can 
remove one or more of the assistants.^^ The last sentence of 
this act contains the famous requirement of citizenship 
peculiar to the New England Colonies. ^^ Now that they had 
a test by which prospective citizens could be measured, a 
large number of those who applied at the October session of 
1630 were admitted as freemen. And at nearly every session 
of the court after that additions were made to the body of 
freemen. The next year saw still more power put into the 
hands of the freemen. At the general court which met on 
May 9, 1632, the right of election of governor and deputy 
governor was restored to the freemen assembled in general 
court. Massachusetts was now a pure democracy, where each 
freeman had a place in the law-making body of the state. 

It is evident that even by this time the population had 
spread into the surrounding country, for we find several towns^^ 
mentioned which were to appoint two citizens each to confer 
with the court about raising a public stock. It seems not at 
all unnatural that a demand for representation should come 
just as soon as the expansion mentioned above reached the 
point where each freeman himself could not attend the 
general court. This demand came in 1634, hastened perhaps 
by the fact that a tax had been levied by the assistants the 
year before. Shortly before the session of the May court of 

» Mass. Col. Recs., I, 87. '» An early example of recall. 

H "To the end of the body of the commons may be preserved of honest and good men, 
it was likewise ordered and agreed that for time to come no man shall be admitted to the 
freedome of this body politicke but such as are members of some of the churches within the 
ly mitts of the same." 

Mass. Col. Records, I, 87. 

" The settlements by the year 1632 were Boston, Salem, Watertown, Roxbury, 
Saugus(Lynn) , Newe Town (Cambridge) , Charlestown, and Dorchester, Mass. Col. Records, 
I, 95. 



MASSACHUSETTS 21 

1634, representatives from the towns waited upon Governor 
Winthrop. They asked to see the patent and urged the 
establishment of a system of representation.^^ 

While the governor did not view this request favorably, 
the general court of 1634 acted upon it. An act was passed 
providing that before every general court the freemen of each 
plantation were to choose two or three deputies. ^^ These 
were to have a part in the making of laws, granting of lands, 
and all public business. The election however of governor 
and assistants was still to be left to the body of freemen 
assembled in annual Court of Election.^^ But the statement 
that the towns could send two or three deputies did not mean 
that it was left to their pleasure. In the Act a specific list of 
towns (to the number of 7) was given with the apportionment 
for each. For several years this continued to be the method. 
When a town was admitted to the privilege of representation 
the act by which it was so admitted always mentioned the 
number of deputies it could choose. 

From the year 1629 to 1635 we have traced the develop- 
ment of the general court from the governing body of a 
trading corporation, through its attempt to become an 
oligarchial governing body down to its expansion as the 
representative legislative body of a commonwealth. It had 
not yet reached its final form. Two more changes were 
necessary, but these both came within the next nine years. 
In 1636 the legislative equality of the two branches was 
acknowledged^^ and in 1644 the two branches ceased to sit 
together as one house.^" 

"Thus within a period of fourteen years from the transfer of 
the government the Massachusetts legislature had assumed 
its final form. It always bore, however, not only in name, 
but in character, the marks of its origin. As in the corporation, 
so in the colony, the general court was the source of power." ^^ 



"Winthrop, I, 152, 153. 

" For several years this is the word used instead of representatives. 
"Mass. Col. Records, I, 118-119. "Ibid., I, 170. 

«» After this separation the governor presided over the Assistants while the Deputies 
elected a Speaker annually. 
" Osgood, I, 158. 



22 MASSACHUSETTS 

The court as it now stood was a wholly elective body. The 
governor and assistants being chosen by the freemen collec- 
tively, while the deputies were elected by a constituency in a 
local district, that is, by towns.^^ 

At different times we find the general court passing re- 
quirements^^ to which the towns had to conform in their 
choice of deputies, but nearly sixty years passed before the 
question is raised regarding residence and then not until the 
first charter had been taken away and a new one substituted 
for it. The only reference to residence in any act under the 
old charter is found in a proposal of the general court in 1644, 
In an effort to decrease the growing expense of the court, due 
to the greater number of deputies seated each year, the 
November court proposed a measure to reduce the number of 
deputies to twenty and to make the shires the unit of repre- 
sentation.2* 

Two provisions of this proposal show that the English 
idea of representation was the prevailing one. "And further 
to y^ end y^ ablest gifted men may be made use of in so 
weighty a work, it shall be at y^ liberty of y^ freemen to choose 
them, in their own shires, or elsewhere, as they shall see best." 

In order to avoid the possibility of two shires choosing the 
same man the election was to be held on different days in 
various shires; Suffolk voting first and sending the result 
to Middlesex which was to vote on the next fourth day, send- 
ing the result of her election and Suffolk's to Essex and 
Norfolk which were combined into one under this proposed 
scheme of representation. Evidently no action was taken 
upon this proposition, for we see nothing further about it in the 
records. About a year later the general court sought to bring 

" Not the town as now generally understood but the New England town. 

" In 1635 the general court ordered all elections of deputies to be by ballot. From 
this date all colonial elections were of this kind. Before this they had followed the English 
plan of a "show of hands". It is fortunate for American political life that we early broke 
away from a custom which had been productive of so much evil in the mother country. 
Under the English procedure an unscrupulous official could bring about the election of 
nesirly any candidate he favored. When the day of election came the crowd assembled, 
nominating speeches were made; each candidate made a speech and then the sheriff called 
for a viva voce vote. The side able to respond with the greatest uproar, either aye or no, 
could thus carry the day. If the vote was taken by a "show of hands" the sheriff decided 
the election by "taking a view" of the number. The ballot was not used in Parliamentary 
elections until 1872. (Stubbs, III, 417, 419-420.) 

" Mass. Col. Recs., II, 88-89. 



MASSACHUSETTS 23 

about the same economy by providing that it should meet at 
each of the three shire towns in order that each town sending 
deputies should bear their expense.^^ 

It was not until the separation of the two houses of the 
general court in 1644^^ that the names of deputies, together 
with the names of towns from whence they came, appear in 
the records.^^ So before this date it is impossible to tell 
whether there were any cases of non-resident representation. 
But from this date on there was much of it, especially in the 
case of the more distant towns such as those in the Piscataqua 
region^^ and the ones in the Connecticut valley. It is impos- 
sible to gather all the cases illustrating this, for quite often 
in the records of the House of Deputies the names of the 
towns from which the deputies came are omitted. But those 
that can be given show the practice clearly enough. 

In 1670 all the following men were officials of Boston: 
Captain Thomas Clarke, Mr. Humphrey Davy, Lieutenant 
Richard Cooke, and Captain Edwin Hutchinson, Com- 
missioners; Captain Thomas Savage, moderator; and John 
Richards and Captain William Davis, selectmen.^^ If one 
were to make a list of colonial men who could be called 
"professional representatives", the above group would be 
such a list; for each one represented time and again some 

" Mass. Col. Recs., II, 140 — ^The custom regarding pay fluctuated back and forth 
between the towns and the colony at large. The March Court of 1635 made provisions 
for the 'dyett' of the deputies while in actual attendance. Such expense was to be borne by 
the colony treasury. (Col. Recs., I, 142.) In September, 1636, it was provided that 
". . . the deputies debt shall be paid him in money or beaver." 

(Col. Recs., 1, 180.) Who was to pay him is not stated. But a change of sentiment seems 
to have come for in October of the same year the following was passed : 
. . . "That the charge of the deputies of the town be borne by the towns which they 
came from, to ease the publicke". 

Col. Recs., I, 183. On March 9, 1637 the deputies were restored to the payroll of the 
colony but there was no mention as to the amount to be given them. (Col. Recs., I, 187.) 
In May, 1638, another change was made again throwing the deputies onto their towns for 
payment. The rate was to be two shillings and six pence per day 
. . . "from the time of their going out — untill their return for their dyot and lodging." 

" Mass. Col. Recs., II, 58. 

" By this time it had been enacted that no town send more than two deputies. (Col. 
Recs., I, 254.) 

••Massachusetts had assumed control over this territory by 1641. In that year it 
was given the privilege of sending 
. . . "two deputies from the whole ryver." 

(Col. Recs., I, 343.) On September 27, 1642, it was granted the privilege of sending one 
from each town and in addition the court waived in their favor the qualification of church 
membership. (Col. Recs., II, 29.) 

" Boston Town Records (1660-1701), pp. 52. 56. 



24 MASSACHUSETTS 

outlying town, and most of them were also Boston officials at 
the time. Taking them in the order in which they have been 
given, we will examine the record of each. 

Thomas Clarke represented Newberry in the general 
court of 1671 and 1672.^'^ In the same court he was one of 
Boston's deputies and had been for ten years. This presents 
an anomalous situation. Careful search has been made to 
see if it were possible that two men of the same name^^ were 
deputies that year but such was not the case. Search was also 
made to find any similar case but only one was found, which 
will be given later, except in the case of two neighboring 
towns far distant from the seat of the general court. From 
another source we learn that Edward Woodman and William 
Titcomb, two residents, had been chosen deputies by Newberry 
on March 6, 1671. But they must have declined to serve, for 
shortly afterwards Richards and Clarke, both Boston men, 
were chosen for the remainder of the year.^^ 

Humphrey Davy represented Billerica, in the general 
courts of 1666-67 and 69;^^ and was Woodburn's representa- 
tive for the years 1671 to 1678 inclusive.^* 

Lieutenant Richard Cooke represented Dover in 1670 
and 1671 along with Richard Waldern, a resident.^^ 

Captain Edwin^^ Hutchinson was a Boston deputy in the 
general court of 1658.^^ In the court of election of the year 
1670 and 1671 we find him acting as deputy for Kittery. 
Still later in the years 1672 and 1673 he represented Wood- 
burn.^* 

Captain Thomas Savage was one of Boston's representa- 
tives in the general court of 1661 and 1662. In 1663 he repre- 

«» Mass. Col. Recs., Vol. IV (2), 485, 507. 

"A Captain Thomas Marshall represented Boston in 1650, Col. Recs. IV (2), 1. 
Also a Captain Thomas Marshall was Lynn's representative for the years 1659-60-64-68. 
These were different men, the latter returning to England during the Civil War and be- 
coming a captain in the Commonwealth Army. (Mass. Col. Recs., IV (1), 364, 382, 416.) 
Lewis, History of Lynn, 91, 106, 146, 148. 

•2 Currier, History of Newberry, 678. 

" Mass. Col. Recs., IV (2), 295, 331. 418. 

» Ibid., IV (2). 485, 507, 551; V. 2. 

*<■ Ibid., IV (2), 449, 485. 

" Appears some places as Edward. 

" Mass. Col. Recs., IV (1). 320. 

»» Ibid., V, 449, 485, 507, 551. 



MASSACHUSETTS 25 

sented Hingham, and in 1672 was deputy for Andover. The 
first year he served for Andover he was elected speaker of the 
House of Deputies.^^ 

John Richards represented Newberry in the years 1671- 
72-73. In 1675 he appears as a deputy for Hadley.^'' 

Captain William Davis, the last man on the list, was 
Springfield's deputy in 1652, 1666, 1671, 1672, and 1776. 
During one of the intervals of time when he was not serving 
for Springfield, he appears as a deputy for Haverhill in the 
general court of 1668.^^ 

There were two other residents of Boston who can as 
justly be called "professional representatives" as any of the 
men in the list given above. These are Captain William 
Tynge and Captain John Hull. 

Tynge represented Boston in 1644 and was at the same 
time treasurer of the colony. He was also Boston's representa- 
tive in the October court of 1646 and again in 1647.^^ jn 
1650 he appears as deputy for Dover^^ and in 1649 and 1651 
for Braintree.^^ 

Hull was one of the mint masters of the colony and though 
a resident of Boston he was the first deputy to sit in the 
general court for Westfield. Westfield was made a town in 
1669 and was represented by Hull in the years 1671 to 1674 
inclusive. In the court of 1676 he represented Concord and 
in February court of 1680 was deputy for Salisbury.*^ 

But non-resident representatives were not confined to 
Boston, as the large number of cases given above might 
indicate. This will be seen from what follows. 

As has already been stated, the first record that appears of 
deputies, together with the towns they represented, is in 
1644 when the two houses began to sit apart. In the general 



"Mass. Col. Recs., IV (2), 1, 41, 71, 485, 507. 

"Ibid., IV (2), 485, 507, 551, 560; V. 42. 

" Ibid., Ill, 259; IV (2), 294, 362, 485, 507. 

" Ibid., III. 10, 79, 105. 

«« There is a descrepancy in the records here. The General Court Records have him 
enrolled as deputy for Dover (Col. Recs., IV (2), 2.), while the Deputies Record have him 
as representing Braintree. (Col. Recs., Ill, 183.) 

" Mass. Col. Recs., Ill, 147, 220; IV (1), 37. 

« Ibid., IV (2), 432. 485, 507, 551; V. 2, 98, 260. 



26 MASSACHUSETTS 

court which met on May 29, of that year, we find the names 
of Richard Dummer and Nathaniel Sparrawhawk as deputies 
from Salisbury and Cambridge respectively. But at the 
general court a year later the same men represent Newberry 
and Wenham respectively.^® In May, 1646, the records show 
that Dummer and Sparrawhawk were again deputies from 
their own towns, as two years previous while Wenham is 
represented by Lieutenant Duncomb, a citizen of Dorchester, 
auditor general of the colony, and a representative of his 
home town in the general court of the year previous.'*^ 

Wenham's choice of a deputy first from Cambridge then 
from Dorchester shows the tendency which was plainly marked 
in the early days of the colony, at least, for the remote towns 
to choose a representative either from Boston or some town 
near Boston. Its choice of the auditor general illustrated 
another tendency which can be quite plainly traced through 
the records. That was for the outlying towns to choose some 
man of prominence; some colonial ofhcial, if they could find 
one who was not already a deputy. 

In the general court of 1645 Gloucester was represented 
by Hugh Prichard, a resident of Roxbury and a deputy from 
there in the court of the previous year.^^ 

Springfield first had a representative in the House of 
Deputies in 1649. This was John Johnson, a resident of 
Roxbury,^^ and surveyor general of the colony.^" He had 
been a deputy from his home town in the years 1644 to 1648, 
and was again in the year 1650.^^ This was a beginning of 
a large number of non-resident deputies which Springfield 
elected to the general court. Its second representative was 
Edward Holyoke, of Lynn, who served for Springfield in 
1650 and 1660.^^ He had represented Lynn almost con- 
tinuously from 1639 to 1648. Then as has already been stated 
it was represented for five years by William Davis of Boston. 
In 1653 it was represented by Captain Humphrey Atherton, 

" Mass. Col. Recs., Ill, 1. 10. " Ibid., III. 1, 10. 

" Ibid., Ill, 54, 62. " Ibid., Ill, 147, 304. 

•» Another illustration of the tendency mentioned in the case of Wenham. 
" Mass. Col. Recs., Ill, 183. " Ibid.. IV (1), 416. 



MASSACHUSETTS . 27 

a resident of Dorchester, and a representative from his home 
town continuously from 1644 to 1651. At this time 1653, 
he was major of the militia, surveyor general, and speaker of 
the House of Deputies.^^ When the contest over non-resi- 
dent representatives came with Governor Phipps in 1693, 
Springfield was one of the towns involved, for it was repre- 
sented at the time by Benjamin Davis of Boston.^^ 

Dover after being granted representation in 1642 was 
generally represented by a resident, but we have already seen 
that it was for a time represented by two Boston men, Tynge 
and Cooke, and Lieutenant John Baker of Ipswich was its 
deputy in the year 1650.^^ 

Kittery and York were represented for the first time in 
1653. In the court of that year, as well as for three succeeding 
years, Kittery was represented by John WincoU, a resident of 
Watertown and a deputy from his own town in 1658.^^ We 
have already mentioned Kittery's representation by Edward 
Hutchinson of Boston. In 1679" it was represented by 
Major Richard Waldron of Dover, a prominent resident of the 
Piscataqua country and a deputy for years from his own 
town. York generally sent a resident as its deputy to the 
general court. It was represented for years^^ by one of these, 
Edward Rushworth. But in the December court of 1660 we 
find it represented by Francis Littlefield, a resident of Wells.^® 

"Mass. Col. Recs., Ill, 10, 68, 121, 183, 297, 401. This duplication of offices in the 
hands of one man was a fact quite common in colonial times. 

" A perusal of the list of Springfield's representatives for the first forty years shows 
that for that length of time at least its representation was in the control of the leading 
family, the Pynchons. From the date of her first deputy (1650) to the time of the contest 
with Phipps (1693) Springfield had been represented in twenty-eight general courts. In 
twenty of these the deputy was John Pynchon himself or some kinsman either by blood 
or marriage. Davis, the Boston man to whom Phipps objected, was a grandson. Whether 
such a paternalism existed in any other town is doubtful. Burt, I, 34-38. 

» Mass. Col. Recs., Ill, 183, There is some uncertainity as to the residence of Baker. 
Two John Bakers appear in the Records, one of Wells and one of Ipswich. See Mass. 
Col. Recs., Ill, 445. 

" Ibid., Ill, 297, 340, 373, 384; IV (1), 120, 182, 222, 320, 372. 

" Ibid., V. 211. 

"Ibid., IV (1), 120, 182, 222, 255, 321, 417. 

•• Ibid., IV (1), 158, 449. The May Court was the most important one and the one 
most largely attended. If a town were represented in but one session of the court during 
the year this was the one where we would find its deputy. But in the December Court of 
1660 we find a much larger attendance than at the Court of Election in May. Towns 
which were not represented in the latter now had a deputy present and quite a number 
which only had one deputy in the former now had two. This would be evidence enough 
to show that some business of unusual importance was in hand and turning to the pro- 
ceedings we see that news of the Restoration had arrived and with it fear as to its result 



28 MASSACHUSETTS 

Now in the May Court of Elections Rushworth had been its 
deputy. This shows us that deputies were not always chosen 
for the whole year, although that was generally done. 

Portsmouth, like York, generally elected a resident but 
in 1654, Valentine Hill of Dover was its deputy, and in 1672 
Richard Collicott of Boston;^" Hill represented his home 
town in several sessions.^^ 

In 1658 Massachusetts extended its bounds still further 
northeast and organized the territory around Casco Bay into 
the two towns Scarborough and Falmouth. They were given 
the privilege of sending one deputy jointly, to the general 
court and two in special cases.^^ In the next court we find 
them represented by Edward Rushworth of York.^* At 
several courts they were jointly represented by a citizen of 
one town or the other. But in 1673 and 1674 Scarborough 
was represented by Peter Brackett of Braintree. Brackett 
had been a deputy for his own town almost continuously 
from 1653 to 1662.®* Falmouth's only non-resident was 
Richard Collicott of Boston, who appeared for it in 1669. 
In 1672 Collicott represented both Portsmouth and Saco.^^ 
This is the second instance noted where one man appears as 
deputy for two towns at the same time.®® 

Even before the Casco Bay territory came under the 
control of Massachusetts, the latter extended its jurisdiction 
over Wells and Saco by a body of commissioners in July, 
1653, and the towns were first represented in the general court 
of the next year. They did not send deputies regularly but 
when they did they were usually residents. Saco's repre- 
sentation by a Boston man has been noted above. 

on the continuation of the government in Massachusetts under the charter. The entire 
proceedings of this session were confined to a long petition to the king; one to Parliament; 
and a letter to the agents of the colony, Captain John Leverett, Richard Saltonstall and 
Sir Henry Ashurst. (Mass. Col. Recs., IV (1), 449-456.) 

«»Mass. Col. Recs., Ill, 340; IV (2), 507. 

" Ibid., Ill, 259, 297, 373, 422. Until the year 1653 Portsmough appears in the records 
as Strawberry Bank. In above year its name was changed and it was granted the privilege 
of sending a deputy to the general court. 

« Ibid., IV (1), 360. 

«» Ibid., IV (1), 365. See page 27. 

•• Ibid., IV (2), 2, 41, 120, 255, 321, 416. 551, 561; V, 2. 

« Ibid., IV (2), 418, 507. 

" See page 24. 



MASSACHUSETTS 29 

Newberry quite often availed itself of the opportunity of 
sending a non-resident deputy to the general court. In 1654 
it was represented by John Saunders of Wells.®^ 

Billerica, as has already been noted, was represented for 
three years by Humphrey Davy of Boston. Later in August 
of 1676, and in the February court of 1680, its deputy was Job 
Lane of Malden.^^ 

Beverly presents but one case of non-residence representa- 
tion and then their representative was taken from their 
neighbor, Salem. Beverly had been made a town in 1668, 
but its first deputy appears in the general court of 1672. In 
that and the following years its deputy was Captain Thomas 
Lathrop, who had previously been a deputy for his own town 
of Salem.^^ 

Salem also presents but one case of non-residence represen- 
tation; that was in 1677 when it had for a deputy Thomas 
Graves of Charlestown. Graves had already had experience 
as deputy for his own town.'^" 

Chelmsford is another town which has but one instance of 
representation by a non-resident, down to the time of the 
contest with Phipps. At that time we find it to be one of the 
towns which aroused the Governor's ire by returning a non- 
resident. Previous to this, in 1667, it was represented by 
Peter Tilton of Hadley who had already had experience as a 
deputy for his own town and was returned for several years 
thereafter. ^^ 



"Mass. Col. Recs., Ill, 333, 336. Saunders had formerly lived in Newberry (Col. 
Recs., Ill, 165). Several cases of removal occur in the early years of the colony which 
might be taken for non-resident representation. For example, Brian Pendleton appears as 
a deputy for Watertown in 1648, and for Strawberry Bank in 1652. After the name of 
Strawberry Bank was changed to Portsmouth his name appears often both as deputy and 
in other connections. He had evidently moved to the Piscataqua territory some time 
between 1648 and 1653. (Mass. Col. Recs., Ill, 277). 

The name of Joseph Hills appears in the records as a deputy from Cambridge, 
Maiden and Newberry, but in none of these cases did he represent one town while living 
in another. He was a resident of Cambridge and while so represented his town in the 
years 1646 and 1647. When Maiden was set off from Cambridge as a separate town his 
residence was within the new village. He was a deputy for Maiden for the years 1649-1656. 
In 1665 he moved to Newberry and acted as a deputy for that place in 1667 and 1669. 
(Mass. Col. Recs., IV (2), 2, 41, 72, 100, 330, 417.) Corey's History of Maiden, 181-182. 

«« Mass. Col. Recs., V, 99, 261, 476, Corey, History of Maiden, 204. 

"Ibid., IV (2), 100, 407, 507, 551. 

'<>Ibid.,V, 77. 98, 132, 184. 

» Ibid., IV (2), 142. 295, 330, 362, 449. 485, 507, 551; Judd's History of Hadley, 585. 



30 MASSACHUSETTS 

Hadley was given representation in the general court in 
1661, and from that time until 1672 it was quite regularly 
represented by residents. In the above year and again in 
1673 and 1683 its deputy was Henry Phillips of Boston, 
while in 1675 it was represented by John Richards, also of 
Boston. ^^ In 1673, during the May Court, which as the an- 
nual court of elections was considered most important, 
Hadley was represented by the two residents, Peter Tilton 
and Samuel Smith, but in the fall court Smith was replaced by 
Phillips, a Boston resident. It had also been represented in 
1669 by William Halton of Northampton,''^ who was also a 
deputy for his own town from 1664 to 1671 with but few inter- 
missions.'* It was during one of these years that he was 
deputy for Hadley. 

No deputies sat in the general court for Northampton until 
1664. In the May court of that year we find Samuel Smith 
and William Lewis, '^ both residents of Hadley and who had 
represented Hadley previous to this time and did again 
subsequently to it.'^ In August court of 1676 Northampton 
was represented by Henry Phillips of Boston. ''' 

A retrospective glance at the instances which have been 
given will show at once that it was the distant towns which 
availed themselves of the privilege of electing non-residents 
to represent them in the general court. But the word "distant" 
meant something different then from what it does now. It 
is said that it took people in Springfield three days of arduous 
riding to reach the capital. Such towns as Boston, Charlestown, 
Dorchester, Roxbury, Watertown, Lynn, and Cambridge 
were always represented from among their own citizenship. 
An inspection will also show, I think, that as the seventeenth 
century progressed the towns availed themselves less and less 
of this privilege. While the law and custom permitted non- 
resident representation, yet the towns preferred to return 
their own citizens as deputies except when distance, weather, 
expense or some other consideration intervened. 

" Mass. Col. Recs., IV (2), 113, 507, 561; V. 42, 421. '» Ibid., IV (2), 100. 

" Ibid., IV (2), 418. " Ibid., IV (2). 2, 41. 72, 117. 

" Ibid., IV (2), 117, 142, 295, 331, 449, 485. " Ibid., V, 99. 



MASSACHUSETTS 31 

So far we have shown the practice of the colonists but 
have said nothing of the law which was supposed to govern 
the practice. With them the case was dififerent from that in 
England. In England during this same period non-resident 
representation was practiced but was contrary to law. But 
such was not the case in Massachusetts, as the following 
quotations from the Body of Liberties of 1641, a compilation 
of colonial law, bear witness : 

"Any Shire or Towne shall have libertie to choose their 
Deputies whom and where they please for the General 
Court. So be it they be free men, and have taken the oath 
of fealty, and Inhabiting in this Jurisdiction." ^^ 

"It is the libertie of the freemen to choose such depities 
for the General Court out of themselves, either in their owne 
Towns or elsewhere as they judge fitest." ''^ 

Also the following: 

"And the freemen of any shire or town, have liberty to 
choose such Deputies for the General Court, either in their 
own shire. Town or elsewhere, as they judge fittest, so be it 
they be freemen, and inhabiting this jurisdiction." ^'^ 

From the time when Andros assumed charge of Mas- 
sachusetts under .royal authority until Governor Phipps 
brought the new charter in 1692 we have no records; for 
during the Andros regime the general court did not meet. 
As the charter named the twenty-eight councilors who were 
to serve for the first year, the first election held under the 
new charter was simply for deputies for the towns. In this 
court, which met on June 8th, 1692, we find for the first 
time the representatives from twenty towns which had 
formerly been in New Plymouth Colony.^^ This was in 
accordance with the new charter which placed all this terri- 
tory in the province of Massachusetts. 

The election of May, 1693, was the first opportunity the 
country had of voicing its approval or disapproval of the 
councilors named by the king in the charter. At the election 

" Mass. Col. Laws, 1889, 47 (Revision of 1660). «» Ibid., 1889, 145. 

'• Ibid., 1889, 49. si Mass. Acts and Resolves, VII, 8. 



32 MASSACHUSETTS 

of this date six prominent colonists, former assistants, but 
who had been left out of the council as named in the charter, 
were chosen councilors, while ten, in all, of those named in 
the charter were displaced by new men. Among the six was 
Elisha Cooke, a prominent Boston man. His election was 
promptly negatived by Phipps, probably because he had 
vigorously opposed Phipps' appointment. ^^ 

This veto of Cooke's name added fuel to the dissatisfaction 
already felt toward Phipps. Many were opposed to the whole 
scheme of government under the new charter and so would 
have opposed any governor under such conditions. The 
subjecting of laws to a double veto with the long period of 
uncertainty till word could come of royal approval or dis- 
approval was very distasteful to the colonists who had been 
accustomed to making their own laws without let or hindrance. 
In addition to all the above the governor had been involved 
in two street brawls, first with Brenton, the royal collector of 
customs, and then with a Captain Short, commander of a 
royal frigate. 

The newly elected House of Deputies met on May 31, 
1693, and elected William Bond speaker. It was the day 
following that the governor refused to approve Cooke. ^ 
The negativing of Cooke was the turning point in Phipps' 
career as governor, for soon thereafter petitions and letters 
poured in for his withdrawal, while in the general court he 
arrayed against him an opposition which he sought to crush 
and did, by the enactment of a non-resident representative, 
act. There were some non-residents in this body. Major 
John Pynchon had been sent as deputy for Springfield but 
was chosen a member of the Council, so Benjamin Davis of 
Boston was selected as his successor.^^ Daniel Allen of Boston 
represented Oxford. ^^ 

It was not long until the governor was in a contest 
with the House over a bill entitled. 



»« Hutchinson (Second Edition), II, 70. Cooke had opposed the new charter while 
Phipps and Mather favored it. All three were the colony's agents in England at the time. 
"Colonial Papers (1693-96), 111. 
" Mass. Acts and Resolves, VII, 21. " Ibid., VII. 20, 29. 



MASSACHUSETTS 33 

. . . "An Additional Bill for Regulating the House of 
Representatives." 

This failed to pass. What its provisions were we do not 
know, for no copy of its has come down to us. There was also 
a difference between the governor and the house over the 
treasurership of the province. The house proving so re- 
fractory the governor dissolved it on July 15. On this date, 
Sewall writes in his diary 

. . . "About noon Mr. Willard prays, the Asemblymen 
being sent for. Presently after the Governor stands up and 
dissolves the Assembly. Was much disgusted about the old 
Treasurer, and about the not passing of the Bill to regulate 
the House of Representatives." ^^ 

Writs were issued for the election of a new House of 
Deputies to meet on September 27, 1693. But a quorum did 
not appear, no deputies coming at all from the counties of 
Hampshire and York, and, on September 28, new writs were 
issued for a session to be held on November 8, 1693.^'^ When 
the newly elected House met it elected Captain Nathaniel 
Byfield speaker. He, though a resident of Boston, repre- 
sented Bristol at this time,^^ and other non-resident repre- 
sentatives appeared; Daniel Allen of Boston as deputy for 
Marblehead,*^ and Captain John Browne of Marblehead as 
deputy for Manchester.^" 

By this time the opposition to the governor in the colony 
was becoming so great and so many persons were demanding 
his recall that his supporters desired the general court to 
petition the king for his retention as governor. This matter 
met strong opposition in the newly elected House, an op- 
position which centered in Boston. In addition to having 
her citizens frequently chosen to represent outlying towns 
Boston had a larger representation than any other town 
of the province. By an act passed November 30, 1692, entitled 

"An Act for Ascertaining the Number and Regulating the 
House of Representatives," 

»« Sewall, I, 380. " Ibid., VII, 29. 

" Mass. Acts and Resolves, VII, 29. •» Ibid., VII. 30. 

" Ibid., VII, 30. 



34 MASSACHUSETTS 

, . . her representation had been raised by special enact- 
ment to four. No other town had more than two.^^ 

The governor's opponents charged that because of the 
objection of the Boston men to vote for a petition favorable 
to the governor he determined to reduce Boston's power in 
the House. ^^ At any rate he had a clause inserted in a bill 
already before the House which read as follows : 

"That not any Town in this Province shall chuse any 
Representative, unless such be a Freeholder and Resident 
in that Town or Towns, such are chosen to Represent." ^^ 

The title of the bill into which this was inserted was 

"An Act to prevent default of Appearance of Represen- 
tatives to Serve in the General Assembly." 

Its other provisions dififer but little from former laws 
of the colony on the same subject. In all probability it was 
the same bill which failed to pass in the May previous. 

Whatever brought on the contest, the governor and House 
were soon in conflict. On November 13, the House demanded 
the privilege of appointing their own sergeant-at-arms. Their 
messenger and doorkeeper were appointees of the governor 
and council and the House felt that their interest would lie 
with the power that appointed them.^^ On Friday, Novem- 
ber 17, the speaker adjourned the House until Tuesday the 
21st without consulting the governor. When the House met 
on the 21st the governor sent them word that he had dis- 
missed the speaker. They at once sent a committee of five to 
wait on the governor and to ask him for what cause he did this. 
He replied: 
. . . "for sundry disorders committed in the house." 

The matter was arranged, without the speaker being dis- 
missed, by the entering on the record the House's acknowl- 
edgment of error, request for pardon and promise not to 

" Mass. Acts and Resolves, I, 88. 
" See two letters below. 

"Laws of Mass. (1714), 54; (1726), 55; (1742), 54; (1759), 48; Acts and Resolves 
of the Province of Mass. Bay, I, 147 

" Mass. Acts and Resolves, VII, 391, Archives, Vol. 48, 221. 



MASSACHUSETTS 35 

offend again. ^^ On the very next day the House approved 
fourteen items in an account bill but did not approve a pro- 
posed grant of £500 to the governor. ^^ 

On this same day the Council sent to the House the pro- 
posed non-residence Act. This at once brought a protest 
from the House signed by twenty-one members, ^^ 

". . . alleging the vote was contrary to Charter, Custom of 
England, of the Province, hindered men of the fairest estates 
from Representing a Town where their Estates lay, except 
also resident; might prove destructive to the Province." ^^ 

There seems to be some doubt whether the twenty-one 
represented the adverse vote on this measure or whether this 
was simply a signed protest. The vote on the final passage 
was twenty-four to twenty-six as we shall see below. That 
this was simply a protest is borne out by the fact that it was 
signed by only two of Boston's representatives, Townsend 
and Thornton. ^^ On a bill aimed specifically at their city 
we should expect them all to vote adversely which they 
probably did. 

The bill was finally passed on November 28,^°*^ by a vote of 
26 to 24 in the House and 9 to 8 in the Council. In the latter 
body the lieutenant-governor opposed the measure while 
Sewall supported it.^*'^ It will be remembered that he had 
acted as deputy for Westfield in 1683.^°^ 

In the opposition which this constitutional innovation 
aroused Increase Mather was charged with being its author 
as much as Phipps. If this charge was true it is only another 
example of the influence of the clergy in the early political life 
of Massachusetts. That the Mathers were active in the 
political life of the time is well known, as is Cotton Mather's 
part in obtaining the new charter and Phipps' appointment 

»s Sewall, I, 385; Mass. Acts and Resolves VII, 391, Council Recs. VI, 309. 

»6 Colonial Papers (1693-96), 209. 

" Mass. Acts and Resolves, VII, 391; Colonial Papers (1693-96), 209. 

" Sewall, I, 385. 

" Ibid., I, 386. Boston's representatives in this court were: Major Pen Townsend, 
Edward Bloomfield, Captain Theophilus Frary and Timothy Thornton. Boston Recs. 
1660-1701, 216; Mass. Acts and Resolves, VII, 44. 

'»» Acts and Resolves, I, 148. 

"'Sewall. I. 387. "'Ibid., I, 57. 



36 MASSACHUSETTS 

as first governor under it. Considering the part Mather 
played in the appointment and also taking into consideration 
that he was in a sense the governor's spiritual father, it is not 
strange that he would have some weight with the administra- 
tion. Under date of June 8, 1693, Sewall records that there 
was great wrath among the people "about Mr. Cooke's being 
refused and 'tis supposed Mr. Mather is the cause". ^"^ 

In a letter of June 12, 1694, most of which will be quoted 
later, from Nathaniel Byfield to Joseph Dudley in London, 
regarding the non-resident act, Byfield charges that Mather 
inspired the act.^'''*. In an account of New England's affairs 
written by a Boston man a few years after the events we have 
enumerated took place, we find the following: 

"It is said, that anno 1693, there were some Boston 
gentlemen representatives from some of the out-towns, 

but not agreeable to the then Rev. I. M. th r; Mr. 

B f — — d for Bristol is mentioned; Mr. M of 

great interest with the weak Gov. Phipps, and with the de- 
votionally bigoted house, procured this act." ^"^ 

Whatever may be the truth in the above charges we do 
know that Mather was a great admirer of Phipps. His life 
of Phipps is highly eulogistic throughout and the character- 
istics which he ascribes to him are hardly borne out by con- 
temporary evidence. When he says, 

"had the country had the choice of their own governor, 
'tis judged their votes, more than forty to one, would still 
have fallen upon him to have been the man; and the Gen- 
eral Assembly therefore on all occasions renewed their peti- 
tions unto the king for his continuance" ^"^ 

he certainly let his zeal impair the truth of his statement. 

The law of November 28, 1693, was first operative in 
effecting the choice of deputies for the general court of May 
30, 1694. The puzzling thing is that we do not find protest 
after protest pouring in from the towns against this inter- 

'»» Sewall, I, 379. '»* Colonial Papers (1693-96), 294-295. 

>«' Douglas, Summary I, 506, Hutchinson quotes the above but does not view it 
sympathetically and calls attention to Douglas' habit of judging men's actions by his 
personal friendship or dislike for them. (Hutchinson II, 75-80). 

•" Magnalia, I. 202, 207. 



MASSACHUSETTS 37 

ference with a deep-seated custom. Springfield is the only 
one which did send such a protest, but did it by the hand of a 
non-resident deputy directly in defiance of the law against 
which she protested. In town meeting on May 17, 1694, 
Captain Benjamin Davis of Boston, was chosen deputy and 
was instructed to lay before the general court the clause in 
the charter that the . . . 

"Representatives for ye Genii Corte may be accepted when 
chosen in the Province." ^^'^ 

But Springfield was not the only town which violated the 
new law, for when the House met on May 30, 1694, there were 
six deputies representing towns in which they did not live. 
When the governor heard this he played a Cromwellian part 
by rushing into the House hatless and ordering all non- 
residents to leave. 

The only contemporary evidence we have of the events 
at this particular time is contained in two letters. We can do 
no better than to quote these quite at length. In a letter 
dated Boston, June 12, 1694, Nathaniel Byfield wrote to 
Joseph Dudley in London, an account of this session of the 
general court.^"* 

". . . I had been returned for Bristol, Captain Davis 
for Springfield, Samuel Legge for Marblehead, Captain 
Disley^"^ for Oxford, Timothy Clarke for Chencford^^" and 
Ebenezer Thornton"^ for Swansea. On our coming in the 
governor said that there were many more of the gentlemen of 
Boston than could serve for that town, and that, for reason 
which he would give later, I, Davis, Dudley [,] Clarke and 
Captain Foxcroft^^^ should not be sworn. The rest being 
sworn, not without confusion. I told the Governor that the 
House of Representatives were proper judges of their own 

«»' Burt's History of Springfield, II, 334. 

"'Colonial Papers (1693-1696), 294-295. 
"» In the letters of the time and even in the public records there was great variation and 
apparent carelessness in the spelling of proper names. The name Disley does not appear 
in the Records and neither was Oxford represented in that session but Captain Dudley 
of Roxbury was Medfield's deputy. (Mass. Acts and Resolves, Vll, 44). This is the man 
meant without much doubt for the name Dudley appears later in the letter. 

•" Chelmsford — Acts and Resolves, VII, 45. 

»» Should be Brenton. Ibid., VII, 45. 

'" The records make no mention of a representative of this name but such a man is 
mentioned by Sewall (1,386) as one of the signers of the petition of protest. 



38 MASSACHUSETTS 

members, but he commanded silence; and when Samuel 
Legge, having held up his hand among the rest came forward 
to sign, he was stopped by the governor for being a non- 
resident of Marblehead. After some discuorse among our- 
selves, we five agreed to go again to the governor and Council, 
with myself as spokesman, to claim to be sworn in as duly 
elected members. We did so accordingly and I make the 
claim, though the governor kept forbidding me to speak, 
and threatened me if I did not hold my tongue. We then 
returned to our own House, having told the Governor that 
what we had done was the least we could do. In the House 
of Representatives Captain Legge took his stand and said he 
would not go out for all the governor, until rejected by the 
House. The governor, hearing of this, came down to the 
representatives in fury without his hat, said he had heard 
that a member against whom he had objected, had refused to 
leave the House unless the House put him out, and that he 
wished to know who it was. Legge at once came forward, 
and the Gov. said he had nothing against him and wished 
he had been returned for Boston, in which case he could 
freely have embraced, but as to the others, if the House 
did not turn them out he would turn them out himself. Now 
if the making of such a law (which we hope you will get 
negatived), and the refusal to swear duly elected members 
be allowed, so that a governor shall be able to pack the 
Assembly, farewell to all good ; and I shall find another place 
to live in. 

That law is contrary to our Charter, though to our shame 
be it spoken, we infringe on our own privileges simply to be 
revenged of particular persons. Mr. J. M.^^^ said a month 
ago that, but for myself, that law would not have been 
passed " 

The other letter, ^^^ bearing date of November 1, 1694, was 
evidently written by a visitor in the colony to a friend in 
London. We have not the name of either the writer or the 
addressee. 

"It was very surprising to me to see the laborious methods 
taken to obtain an address from the general assembly here, 
for the continuance of Sir William in the government. The 
opposers were gentlemen, principally of Boston, who were too 

"• In the Records immediately following these initials we find the parenthesis (Joshua 
Moody or Increase Mather). 
'" Hutchinson, II, 79-80. 



MASSACHUSSETTS 39 

near Sir William to think well of him, but served in the House 
for several towns and villages at some distance, where some 
of them were born, and others had their estates and improve- 
ments above any dwellers in the place for which they served. 
To be rid of them all at once, a bill was brought in, or rather 
a clause brought into the bill that no man whatsoever should 
serve in the house of commons for any town, unless where he 
did at that time live and dwell, which passed with the dis- 
sent of twenty-four, the whole house consisting of fifty and 
with some heat in the upper house. Sir William hereupon 
rushes into the house of commons and drives out the non- 
residents, and I not mistaken if either for estates or loyalty 
they left any of their equals in that house." 

Remembering the political independence which char- 
acterized Massachusetts throughout her colonial and pro- 
vincial history one would expect this sweeping constitutional 
change to arouse a storm of opposition. But it evidently did 
not. The town records of Boston and the other towns are 
practically silent on the matter. A perusal of the members 
elected to the next general court which met on May 29, 1695, 
will not show a single case of non-resident representation.^^* 
Whether the importance of the change was overshadowed by 
the excitement and terror of the witchcraft craze which had 
just passed its zenith it is impossible to tell, but it certainly 
did not meet with the antogonism we might expect. 

Evidently there were still some who believed that under the 
old method men of more ability were elected to the House of 
Deputies. This was probably true. Ability of the House of 
Deputies as a whole had been purchased at the expense of the 
independence of the outlying towns and at the expense of 
giving Boston a preponderate influence in colonial affairs. 

Sixty years later a colonial historian in commenting on this 
change in the constitution plainly shows where his sympathies 
lay: 

"A gentleman of good natural interest and resident in the 
province; a man of reading, observation, and daily conversant 
with affairs of policy and commerce, is certainly better 
qualified for a legislator, than a retailer of rum and small 

»" Mass. Acts and Resolves, VII, 72-73. 



40 MASSACHUSSETTS 

beer called a tavern keeper, in a poor, obscure, country town, 
remote from all business; thus this countryman will not be 
diverted from the most necessary and beneficial labor of culti- 
vating the ground, his proper qualification, to attend state 
affairs, of which he may be supposed grossly and invincibly 
ignorant; thus the poor township, by gentlemen at large 
serving gratis or generously as the quota of the township, will 
be freed from the growing charge of subsisting a useless 
representative. "^^^ 

Governor Phipps' action seems to have settled the matter 
in Massachusetts for all time. In 1695 and again in 1698 the 
General Court prescribed the form of writ to be used in 
calling a meeting of that body. These two are practically 
identical, the latter one reading in part: 

"William the Third ... to our Sheriff. . . . We 
command, that upon receipt hereof, you forthwith make out 
your Precepts, directed unto the Selectmen of each respective 
Town within your Precinct, Requiring them to cause the 
Freeholders, and other Inhabitants of their several Towns, 
duly Qualified ... to assemble at such Time and Place, 
as they shall appoint, to Elect and Depute one or more 
persons (being Freeholders and resident in the same Towne) 

"117 

The next time we find the matter mentioned is in an act 
entitled, 

"An Act in addition to an act entitled 'An Act for As- 
certaining the number, and regulating the House of Repre- 
sentatives',"^^^ 

passed on April 24, 1731. It contains the usual residential 
qualification. 

Nothing further appears in Massachusetts' law, so the re- 
quirement must have become a fully accepted part of state 
law and custom. In the constitution of 1779-1780 the prin- 
ciple was maintained^^^ the matter not even being discussed in 

"' Douglass, Summary I, 507. 

»' Mass. Acts and Resolves, I, 315; Acts and Laws, 118-119, Act No. 80. 

>" Ibid., II, 592, 593. 

"•Journal of the Convention. Senate, Chap. I, Sec II, Art. V; House, Chap. I, 
Sec. Ill, Art. IV. 



MASSACHUSSETTS 41 

the convention. Some qualifications for representatives were 
debatedi2o but the one that he should live in the district 
represented had by this time become so well established that 
it found no opponents. 



"0 Journal of the Convention, 77, 125. 



NEW PLYMOUTH 

The governing body of New Plymouth as in the other New 
England colonies was the general court. This consisted of the 
governor, assistants, and all the freemen of the colony. Until 
1632 the settlement was compact and hence it was no hardship 
for the freemen to attend the three annual meetings of the 
Court. But about this time outlying settlements began to 
spring up and we find Governor Bradford and others be- 
moaning the fact.^ 

The first reference to the expansion of settlements found 
in the records of the colony is in 1636 when a committee con- 
sisting of four from Plymouth, two from Scituate, and two 
from Duxbury (Duxburrow) was appointed by the general 
court meeting on October fourth of that year, to join with the 
governor and assistants in codifying the laws of the colony.^ 
An expansion of settlements brought with it the inevitable 
demand for representation and this was granted on March 5, 
1639, by the following act: 

"Whereas complaint was made that the freemen were put 
to many inconveniences and great expenses by their continual 
attendance at the Courts. It is therefore enacted by the 
Court for the ease of the several Colonies and Townes within 
the Government That every Towne shall make choyce of two 
of their fifreemen and the Towne of Plymouth of foure to the 
Committees or Deputies to joyne with the Bench to enact 
and make all such laws and ordinances as shalbe judged to be 
good and wholesome for the whole " 

Here follows a provision by which the freemen at the general 
court of election could repeal any law so passed and enact 
one to suit themselves. The act then continues: 

". . . and that every Township shall beare their Com- 
mittees charges and that such as are not ffreemen but have 
taken the Oath of fidelitie and are masters of famylies and 
Inhabitants of the said Townes as they are to beare their 
part in the charges of their Committees so to have a vote in 

1 Bradford. History of Plymouth, 303. = Plymouth Records. I, 43-44; XI, 6. 

42 



NEW PLYMOUTH 43 

the choyce of them provided they choose them onely of the 
ffreemen of the said Towne whereof they are."^ 

At a general court which met on June 4, 1639, deputies 
from seven towns appeared as a result of the privilege granted 
by the above law."* But this does not mean that New Ply- 
mouth's general court was at once changed from a primary 
to a representative assembly. This transition was not 
completed for a number of years for freemen still appeared 
in person at the annual court of Election.^ This act of 1639 
plainly lays down a residential qualification and that it was 
obeyed is shown by a careful checking of the lists of deputies 
or "committees" between 1639 and 1646, the date of the next 
law on the subject. Such a checking fails to reveal a single 
violation of the residential requirement. 

The law referred to above, passed on October 20, 1646, 
confirmed the practice of all freemen coming to the court of 
election, but the opening sentence shows that a residential 
qualification was still operative for deputies: 

"Whereas the Townes formerly were to send their deputies 
(which must arise out of their freemen) to attend the 3 
general Courts "^ 

Plymouth laws were all revised in 1658.^ In this revision 
the law of 1639 regarding Deputies reads: 

". . . It is therefore enacted by the Court and the 
authorities thereof . . . that every towne shall make 
choise of two of their ffreemen . . . provided they choose 
them only of the ffreemen of the same towne whereof thev 
are. . . ."« 

Also the law of 1646 when revised retained exactly the same 
wording it formerly had. 

The next and last revision of law in New Plymouth colony 
was in 1671. Article 7 of the chapter on Courts reads: 

"It is Enacted, That each Township in this Jurisdiction 
do Annually, Elect and Choose one or two fit men out of the 
Freemen, for their Deputies. . . ."* 

'Plymouth Records., XI, 31; Brigham, Laws, 63. 

*Ibtd., I. 126. ^bid.. XI, Parts II and III. 

'Ibid.. Ill, 174; XI, 155. 'Ibid., XI, 169. 

« Ibid., XI, 54. • Brigham, 259. 



44 NEW PLYMOUTH 

While this does not specifically mention that only a resident 
must be chosen, yet in the light of what had gone before a 
residential qualification is implied without a doubt. 

So we have in New Plymouth the interesting example of a 
colony differing from all her New England neighbors in regard 
to a residential qualification for deputies in the general court. 
The question which naturally presents itself is, Why this 
difference? The colony Records themselves give us no an- 
swer, neither do the contemporary writings of the time such 
as those of Governor Bradford and Secretary Morton. Hence 
any reason assigned must be pure inference. 

But several possibilities suggest themselves. The amount 
of importance to attach to any one of them must be left to 
the judgment of the reader: 

(1) Considering the compactness of the colony during 
most of its separate existence it is not surprising that in 
practice the towns chose residents to represent them. The 
surprising thing is that it was required by law. 

(2) No city developed at the political centre of the colony, 
as in Massachusetts, on which the remote towns could draw 
for able representatives. Plymouth (town) had a hard time 
to hold her own and at the time of the colony's absorption 
by Massachusetts there were several towns in the colony 
which rivaled her in size and importance. 

(3) New Plymouth never developed a political conscious- 
ness as did Massachusetts, for example: No political parties 
developed and no governor, so far as the records show, ever 
met with any opposition on election day. The position and 
title of freeman with its attendant privileges and duties were 
not eagerly sought as in some colonies. On the other hand, 
that dignity, with the political responsibilities attached, was 
often evaded. 

(4) The explanation for which we are searching may be 
found in Plymouth's strict conformance to English law. 
The contrast between New Plymouth and Massachusetts in 
this regard is plainly evident on every page of the colonial 
records. Writs, which in Massachusetts were issued in the 
name of the colony, in Plymouth, were issued in the name 
of the ruling sovereign of England while the royal commis- 
sioners of 1664 who were received with scant courtesy by 
Massachusetts were loyally welcomed by New Plymouth. 



NEW PLYMOUTH 45 

In all things, New Plymouth was loyal to English law and 
tradition. 

In England at this time although non-residence repre- 
sentation was common, yet the strict letter of the law de- 
manded that a member of the House of Commons must be a 
resident of the county or borough returning him.^° In New 
Plymouth the requirement may thus have been a conscious 
adaptation of English law despite the tendency of English 
practice. 

"See Chapter I. 

Note: In an attempt to find if any town in the colony ever attempted to violate the 
requirement of sending a resident to represent it in the general court, I have checked, 
systematically and thoroughly, every list of delegates which appears in the records. Not 
a single case of non-residence representation is shown. 



NEW HAMPSHIRE 

This colony presents the most varied legislative history of 
any of the New England colonies. In 1641 Massachusetts 
extended her control over what was called the Piscataqua 
territory and from that date until 1679 the towns of this 
territory were represented in the general court of Massa- 
chusetts. The cases of non-resident representation during 
these years have already been given in the chapter on Massa- 
chusetts. 

When Randolph was urging his claims against Massa- 
chusetts in 1677 the Privy Council submitted the conflicting 
claims regarding territorial and governmental control of New 
Hampshire to the law officers of the crown. Two points of 
their decision were: 

(1) Massachusetts' northern boundary extended three 
miles north of the Merrimac, and 

(2) Massachusetts had no rights of government over 
New Hampshire.^ 

Through the efforts of the Mason heirs, aided by Randolph, 
Massachusetts was ordered, in 1679, to withdraw govern- 
mental control from New Hampshire. By a commission which 
passed the Great Seal, September 18, 1679,- provision was 
made for a president and council. This was brought to 
Portsmouth on January 1, 1680, by Edward Randolph, and 
according to Belknap the local men named in it as president 
and council reluctantly assumed their new duties.^ Their 
reluctance shows that the change was not a welcome one. 
There is little doubt that the majority of people of the colony 
wished to remain under the government of Massachusetts. 
Besides the six men named as councilors by the com- 
mission the council and president were authorized to choose 
three other councilors. The president and five councilors 
were a quorum for transacting business.* The commission 

1 Colonial Papers, 1677-1680. » Belknap, I, 175. 

' New Hampshire Provincial Papers, I, 373. * N. H. Prov. Papers, I, 375. 

46 



NEW HAMPSHIRE 47 

further provided that within three months after the council 
was sworn in they were to issue a summons for a general 
assembly of the province 

. . . "using and observing there such rules and methods — 
as they shall judge most convenient." ^ 

In the writs for the first election under this provision the 
electors were mentioned by name,^ an unusual proceeding 
and one that difTered radically from the other New England 
colonies whose towns were the sole judges of the qualifications 
imposed for citizenship. 

This assembly met at Portsmouth on March 16, 1680. 
There were eleven deputies present; three each from Ports- 
mouth, Dover, and Hampton, and two from Exeter.^ Among 
the laws passed by this assembly was one regulating the 
election of deputies. This provided that the constables of 
each town were to 

. . . "call together the freemen of their respective towns on 
the first Monday in February, annually and from among 
themselves to make their selection of Deputies to ye General 
Assembly." ^ 

A strict interpretation of this would mean, without doubt, 
that a town was restricted to the choice of one of its own 
citizens. That such was the intention of the law hardly seems 
probable. It is more probable that a chance wording makes 
such an interpretation possible. The assembly was to meet 
in Portsmouth on the first Tuesday of March, annually. The 
number of deputies was limited to eleven, distributed among 
the towns in the same proportion mentioned above. ^ 

New Hampshire continued to be governed by a council 
and assembly composed almost entirely^" of local men until 
1682. In March of that year Edward Cranfield was ap- 
pointed governor. His commission was dated May 9, 1682, 
and he arrived in the province on October 4,^^ of the same year. 

' N. H. Pfov. Papers, I, 379. » N. H. Prov. Papers, I, 408. 

• Belknap, I, 177. .■' Ibid., 1., 177. ^ Ibid., I, iOS. 

"Two Englishmen, Mason and Chamberlain, had been added. 
» N. H. Laws, I, 48. 



48 NEW HAMPSHIRE 

His commission was long and elaborate and was similar to 
those which Great Britain was beginning to issue to royal 
governors. With only one provision of this are we interested. 
That is the one providing for the continuance of the assembly. 
The governor was granted full power and authority : 

". . . from time to time as need shall require to surn- 
mon and call general assemblyes of the freeholders within 
your government, in such manner and form as by the advice 
of our said Council you shall find most convenient for our 
Service and the good of our said province, . . ." ^^ 

The period from 1679 to 1686 was New Hampshire's first 
experience as a separate provincial government. During this 
time seven general assemblies met, the last one convening on 
July 22, 1684.^^ During Cranfiield's administration he was in 
constant trouble with the various assemblies and one would 
scarcely meet until angered by some act or by its refusal to 
do his bidding he would dissolve it. Consequently the legisla- 
tive record for that period is very brief. Of these seven as- 
semblies we know the names of only the deputies constituting 
the first one. So there is absolutely no way to tell to what 
extent, if any, non-residence representation was practiced in 
New Hampshire during its first experience as a separate 
province. 

From the arrival of Joseph Dudley as President of the 
Dominion of New England, on May 25, 1686, to the uprising 
against Andros on April 18, 1689, New Hampshire was again 
a part of an association of colonies arbitrarily combined into 
one government. It was during this period that the repre- 
sentative assemblies of all New England were in abeyance. 

When the officials of the Dominion had been sent to 
England as prisoners the commonwealth governments of New 
England at once re-assumed their old form. New Hampshire, 
a royal province, but without a royal official in it, was left 
without government of any kind, 

. . . "either by royal commission, union with other colonies, 
or federation of the towns themselves." " 

" N. H. Laws, I, 50. " Ibid., I. 74. " Ibid., I, 259. 



NEW HAMPSHIRE 49 

This portion of New Hampshire history has been called the 
Second Period of Local Self-Government.^^ A strong effort 
was made to bring about a federation of the towns. Three 
of the towns favored this but Hampton was divided into two 
factions over the question. A proposed form of government^® 
was drawn up by a convention, composed of deputies from 
each town, which met in Portsmouth on January 24, 1690. 
Hampton's objection, together with the knowledge of their 
inadequate means of defence in the war whose ravages were 
just beginning, forced the towns of New Hampshire to 
again turn to Massachusetts. On February 20, 1690, a 
petition signed by about 350 inhabitants of New Hampshire, 
was drawn up praying to be taken under the protection of 
Massachusetts.^^ The governor and council of Massachusetts 
approved this petition on February 28, 1690, and it was con- 
firmed by the general court on March 19.^^ 

During this second union with Massachusetts, Portsmouth 
was the only town which sent deputies to Boston. In 1690 
its deputies were Elias Stileman and John Foster. The 
former was a resident of Portsmouth but the latter lived in 
Boston. He was one of the town Commissioners at this time 
and also one of the three commissioners^^ for conducting the 
first Intercolonial War which had already begun. In 1691 
her deputies were John Pickering, a citizen, and Richard 
Waldron, of Dover.^^ In 1692 Waldron again represented 
Portsmouth, this time serving alone. 

At this time it was the wish of a majority of the people of 
New Hampshire to remain under the government of Massa- 
chusetts and petitions were sent to that effect to the agents of 
Massachusetts who were in England soliciting for a new 
charter .2^ What brought forth these petitions was the knowl- 
edge that Samuel Allen, a merchant of London who had 
purchased the Mason Claims, was striving to have himself 
appointed governor of New Hampshire. Allen's importunate 

» N. H. Laws, I, LXXXII. ■• N. H. Laws. I, 378, 400, 401. 420, 843. 

" Ibid., I, 260. " Ibid., I, 14. 

" N. H. Prov. Papers, II, 34-39. " Belknap, I, 239. 

''Ibid., I, 267. 
4 



50 NEW HAMPSHIRE 

demands were granted and a commission was issued to him as 
governor on March 1, 1692.^2 By this, John Usher, a merchant 
of Boston, and a son-in-law of Allen, was named as lieutenant 
governor. Usher was in London at the time. His com- 
mission provided for an assembly which the governor could 
call with the advice and consent of the council. Members of 
the assembly were to be elected by freeholders after each one 
had taken 

. . . "the oaths appointed by Acts of Parliament to be 
taken instead of the oaths of Allegiance and Supremacy and 
subscribed the Test." ^^ 

In Allen's instructions he was again cautioned to make sure 
that members of the assembly were elected only by freeholders 

"as being most agreeable to the custom of England. . . ." ^* 

Nine men, besides Usher, were named in the instructions, as 
constituting the council. Three were to be a quorum but no 
important act was to passed with less than five present 
except in an emergency. 

Government under the new regime began with the arrival 
of Usher on August 13, 1692. The first session of the general 
assembly was held on October fourth .^^ This assembly 
numbered twelve and all the men were residents of the 
towns they represented. An act passed on the last day of the 
session was one regulating the pay of the representatives.^* 
They were to receive three shillings per day 

. . . "to commence from their coming out until their return 
home allowing one day for coming out and one day for re- 
turning." 

This was to be paid by their respective towns.^'' 

Lieutenant-governor Usher was not popular in New 
Hampshire and he was opposed at every turn by the anti- 
Allen party. To them he was the embodiment of the old 
Mason claim to territorial rights. In addition he never lived 

« N. H. Laws, I. 499. " Ibid., I, 510. 

^' Ibtd., I. 503. "■Ibid., I, 517. 

" From this time on in the records this word is used instead of deputies. 

" N. H. Laws. I, 533. 



NEW HAMPSHIRE 51 

in the province but continued to reside in Boston. Finally 
this opposition succeeded in having William Partridge, a 
citizen of the province, appointed lieutenant governor. He 
was appointed June 26, 1696, and took office December 14, 
1697.2^ Partridge acted as lieutenant governor until Sep- 
tember 15, 1698, when Governor Allen appeared in the 
province^^ for the first time. His commission was still opera- 
tive although Lord Bellomont's had already been issued as 
governor of New York, Massachusetts, and New Hampshire. 
New Hampshire's seventeenth general assembly ad- 
journed shortly after Governor Allen's arrival, that is, on 
October fourth.^" On December 18, 1698, he issued a summons 
for the next assembly. In this summons appears for the first 
time any specific reference to a residential qualification for 
representatives. Because of the extra-royal tone of the 
summons quite a long quotation is given : 

"William the Third, by the Grace of God King, etc.,. 
To our Sheriff or Marshall of our Province of New Hamp- 
shire, Greeting: 

We command, that upon receipt hereof, you forthwith 
make out your precept directed unto the Selectmen of each 
respective Towne within our Province of New Hampshire 
requiring them to cause the Freeholders and other Inhabitants 
of their several Townes, duly qualified, to assemble at such 
time and place as they shall appoint, to elect and depute, one 
or more persons, (being freeholders and residents in the same 
towne) according to the number set and limited by the Act 
of the General Assembly ... to serve for and represent 
them respectively in a great and General Court or Assembly 
by us appointed to be convened ... In New Castle upon 
Thursday, the fifth day of January next ensuing . . . 
Hereof you may not fail at your peril. Witness, Samuel 
Allen, Esq., Governor and Commander in Chief in and over 
our province of New Hampshire aforesaid. Given at New 
Castle under the Public Seal of our said Province, the 18th 
day of December, in the tenth year of our reign, A. D. 1698. 

By Command, 

^___ Sampson Sheafe, Secy." ^i 

" N. H. Laws. I, 515. •» N. H. Laws, I. 506. 

"N. H. Prov. Papers, II, 277. m N. H. Prov. Papers, II, 283-284. 



52 NEW HAMPSHIRE 

If we seek a reason for this new qualification for representatives 
it is not easy to find. That it was meant to be emphatic is 
shown by the parenthesis which appears in the summons. 

Non-residence representation had not been the practice 
in New Hampshire since it had been given a separate form of 
government. From the appointment of Governor Allen to the 
time this summons was issued ten general assemblies had met; 
most of them of two sessions. A careful checking of the lists 
of representatives shows but one case of non-resident repre- 
sentation. In the assembly of May 15, 1695, Newcastle was 
represented by Elias Stileman of Portsmouth. He had 
represented Portsmouth in October, 1692, and March, 1693.^2 
Neither had the governor met with sharp opposition center- 
ing in one town as was the case between Governor Phipps and 
Boston. It may be possible that the same requirement forced 
upon Massachusetts by a royal governor furnished the in- 
centive for this. 

Since this rule was not by order of the council or by en- 
actment of the assembly but by proclamation the question of 
its legality might be raised. Turning to the governor's com- 
mission we find the following :^^ 

"And we do hereby give and grant unto your full power 
and authority with the advise and consent of our said Council 
from time to time as need shall require to summon and call 
assemblies of the freeholders within your government in such 
manner and form as by the advice of our Council you shall 
find most convenient for our service and the good of our said 
province." 

The clause in the above 

. . , "in such manner and form — you shall find most con- 
venient" 

. . . probably gave the governor ample authority for his 
proclamation. And it was obeyed. When the assembly met 
on January 5, 1699, there was no violation of this order such 
as we saw in Massachusetts immediately following the en- 
actment of a residence qualification for deputies, 

"N. H. Laws, I. 13, 517, 545. 575. " Ibid., I. 503. 



NEW HAMPSHIRE 53 

Lord Bellomont now arrived in New Hampshire and was 
recognized as governor on July 31, 1699. An assembly which 
met at his call and the first one elected since the one chosen 
under Allen's new rule enacted a law regarding qualifications 
of representatives in which residence was not mentioned. 
But before we examine this it will be well to take up Lord 
Bellomont's Commission and Instructions. 

The portion of his commission referring to an assembly 
reads exactly as the quotation given above from Governor 
Allen's Commission.^* In his instructions two clauses only 
refer to the assembly. By one he is admonished to see that 
members of the assembly are elected only by freeholders and 
by the other he was ordered to reduce the salary of the 
members to a point where it would not be too heavy on the 
towns. He was, however, to use his discretion about the 
latter.^^ The first assembly under Governor Bellomont met 
on August 7, 1699.^^ On the seventeenth a law was passed 
entitled 

"An Act to Return Able and Sufficient Jurors to Serve in the 
Several Courts of Justice and to Regulate the Election of 
Representatives to serve in the General Assembly within 
this Province." ^^ 

This law was approved by Bellomont shortly before leaving 
the province.^^ 

The clause of this act referring to representatives is entitled 

"Qualification of Representatives and Electors" 
» . . and reads in part: 

"And be it further enacted by the authority aforesaid, 
that no person inhabiting within this province other than 
freeholders of the value or income of forty shilling per annum, 
upwards, in land, or worth fifty pounds sterling at the least in 
personal estate, shall have any vote in the election of Repre- 
sentatives; or be capable of being elected to serve in the 
General Assembly. . . ." ^^ 

"N. H. Laws, I. 612-620. "Ibid., I. 657. 

•» Ibid., I. 623. •» Ibid., I. 640. 

•• Ibid., I, 635. •• Ibid., I, 659. 



54 NEW HAMPSHIRE 

Whether no mention of a residential requirement was 
approved by Governor Bellomont, as he had a perfect right 
to do under his instructions, or whether this omission of any 
reference to residence was a studied one on the part of the 
assembly and it chose this way of putting itself on record as 
opposing the requirement laid down by the former governor, 
are questions which the available data do not answer. But 
there is not doubt that the people of New Hampshire re- 
garded the coming of Bellomont as a return to their ac- 
customed governmental forms and regulations. Belknap, 
after speaking of the return of Partridge to the office of lieu- 
tenant governor and the reinstatement of some of the council 
whom Allen had removed, says, 

"The government was now modelled in favour of the 
people, and they rejoiced in the change, as they apprehended 
the way was opened for an effectual settlement of their long 
continued difficulties and disputes." ^^ 

Under succeeding governors we find no attempt to impose 
a residential requirement upon the province in the choice of 
its representatives, although they had, or at least some of them 
had, as much authority to do so as did Allen. For example, 
Joseph Dudley's commission which was issued July 13, 1702. 
The clause in this which gave him power to call an assembly 
reads exactly as did the corresponding clause in Allen's and 
Bellomont's commissions.*^ 

The commissions of later governors were worded slightly 
differently and were perhaps meant to leave the rules and 
regulations governing the assembly in its own hands. Jona- 
than Belcher became governor of New Hampshire in 1730. 
His commission reads in part: 

"And we do hereby give and grant unto you full power 
and authority with the advice and consent of your said 
Council from time to time as need require to summon and call 
General Assemblys of the Freeholders and Planters within 
your Government in manner and form according to the usage 
of our Providence of New Hampshire. . . ." *^ 

" Belknap, History of New Hampshire, I, 305. 

" N. H. Prov. Papers, II, 368. " Ibid., IV, 638. 



NEW HAMPSHIRE 55 

The commission of Bening Wentworth, the last royal governor 
of New Hampshire, reads exactly as does that of Belcher.^' 
The point wherein these two differ from the earlier com- 
missions is in the words : 

". . . in manner and form according to the usage of our 
Province of New Hampshire. . . ." 

The only demand made in these commissions on those elected 
as representatives was that they should take certain oaths 
showing their loyalty to the crown. 

Between the time of the act of 1699 and the end of the 
provincial period of New Hampshire history only one act was 
passed which laid down qualifications for representatives. 
This was in 1728 and was an act providing for triennial 
assemblies. It referred to one formerly passed and submitted 
to the Lord Commissioners of Trade and Plantations. Nothing 
having been heard — 

. . . "it is presumed that if it had been disagreeable 
to his Majesty, his disallowance thereof had long since been 
made known." ^* 

The portion of the act in which we are especially interested 
reads: 

"And that no person shall be allowed to serve in the house 
of representatives as member thereof, unless he hath a real 
estate within this province of the value of three hundred 
pounds; and the qualifications of the person so elected shall 
be determined by the house of representatives for the time 
being." 

The only qualification demanded of a representative by 
this act was a property one and it is interesting to note that 
the same is true of electors. 

"And no person shall have the liberty of voting in the 
choice of representatives, other than such who has a real 
estate of the value of fifty pounds within the town, parish 
or precinct where such election shall be; . . . And be it 
further Enacted by the Authority aforesaid, That any person, 
having real estate of fifty pounds as abovesaid, shall have 

" Acts and Laws of New Hampshire (1771), 3. " Ibid.. (1771), 166. 



56 NEW HAMPSHIRE 

the liberty of voting in the town, parish or precinct, where 
such his estate shall be, although he be not an inhabitant in 
said town, parish or precinct at the time of such election." *^ 

Belknap says of this that it 

". . . was the only act which could be called a con- 
stitution or form of government, established by the people of 
New Hampshire; all other parts of their government being 
founded on royal commissions and instructions. But this act 
was defective, in not determining by whom the writs should 
be issued, and in not describing the places from which Repre- 
sentatives should be called, either by name, extent or popula- 
tion." 4« 

This effect which Belknap points out is apparent as one reads 
the records. There was contest after contest between the 
governor and assembly over the right to grant new towns the 
right to representation. 

It seems clear from the governor's commission and from 
the practice that had been followed in New Hampshire from 
the first that it was the governor's privilege to name a new 
town in the election writs whenever he thought the conditions 
there justified it. The most bitterly contested case of this 
sort occurred in 1749 when the House and Governor Went- 
worth came into conflict over this very question. On January 
10, 1749, the governor vetoed the House's choice of speaker 
because they refused to seat two members chosen from 
Chester and South Hampton. The House stood firm that the 
granting of the right of representation to a town was by its 
own action and not by the king's writ. Nothing was ac- 
complished the whole life of the assembly as it was kept under 
short adjournments and prorogations until the triennial act 
dissolved it.*' 

The first and only case of non-residence representation in 
New Hampshire which I have been able to find was in 1749 

" The above act provided that the session of the assembly passing the act should end 
on April 13, 1731, and that the provisions of the act should apply to the choice of succeed- 
ing assemblies. 

" Belknap, II, 90. 

" N. H. Prov. Papers, VI, 74-77. For another interesting phase of this contest see 
Fry, New Hampshire as a Royal Province, 139-141. 



NEW HAMPSHIRE 57 

when Richard Waldron (the third of the same name) appeared 
as a representative for Hampton.*^ He served in this capacity 
until 1752. Waldron was a resident of Portsmouth and the 
leader of the opposition to Governor Wentworth. Adams 
in his Annals of Portsmouth says: 

". . . but soon after Governor Wentworth commenced his 
administration, he suspended Mr. Waldron as Counsellor, 
removed him from office, and appointed Colonel Atkinson 
Secretary and Andrew Wiggin, Judge of Probate. He re- 
mained a private citizen, until the beginning of the year 1749, 
when he was solicited by his friends in town to be a candidate 
to the General Court which was to meet in January; but he 
absolutely refused. In the meantime, the town of Hampton 
elected him their representative, without giving him any 
previous intimation of their design ; they notified him of their 
choice by a Constable, and after some consultation he ac- 
cepted the appointment." '*^ 

When the assembly met Waldron was elected speaker but the 
Governor negatived the choice. This was the beginning of 
the contest already noted above. 

The provincial period of New Hampshire closes with no 
residential qualification for representatives in force, and, 
though not forbidden, we have seen that non-residence 
representation was not practiced. One reason for this was 
the fact set forth in the following statement of Governor 
Belcher. In 1733 the Assembly^" complained to Belcher of 
his frequent dissolutions. He replied: 

". . . Nor do I see any great Inconvenieny in the dis- 
solution of an Assembly since there are but twelve Towns in 
the Province that send Representatives and of which the most 
remote is not a day's journey from the place where you 
commonly sit. . . ." ^^ 

New Hampshire did grow slowly as it suffered severely from 
Indian raids in all the intercolonial wars. Not until the 
period between the last intercolonial war and the Revolution 

«« Dow, History of Hampton, I, 567; N. H. Prov. Papers, VI, 70. 
••Adams, 191-192. 

•• General Assembly is the correct term for the lower house of New Hampshire's 
law-making body from 1679 to 1775. After 1775 General Court is the correct term. 
" N. H. Prov. Papers. IV, 698. 



58 NEW HAMPSHIRE 

did outlying settlements spring up in any number. During 
those years the assembly increased constantly in numbers 
and at the end of the provincial period had thirty-four mem- 
bers. 

New Hampshire claims the distinction of being the first 
state to adopt a constitution in response to the suggestion of 
the Continental Congress. A convention of representatives 
from the towns met in Exeter on January 5, 1776, and re- 
solved themselves into a house of representatives as they had 
been authorized to do. The rules under which they had been 
elected were similar to those in force when the state was a 
royal province. The towns were not required to choose 
residents.^2 Immediately after assuming the authority of a 
house of representatives the body drew up a form of govern- 
ment for New Hampshire.^^ This is called the state's first 
constitution. As it was hoped the war would be of brief 
duration the instrument was neither complete nor precise. 
No qualifications for either representatives or councilors were 
included in it. 

In 1778 a constitutional convention met at Concord^^ to 
frame a new instrument of government, but what the result of 
their labor was we do not know, for the journal of the con- 
vention has not been found. But the following year, 1779, 
a constitution was framed, submitted to the people and re- 
jected. ^^ The clause of this respecting representatives reads 
as follows: 

"All male inhabitants of the State of lawful age, paying 
taxes, and professing the protestant religion, shall be deemed 
legal voters in choosing counsellors and representatives, and 
having an estate of three hundred pounds, equal to silver at 
six shillings and eight pence per ounce, one-half at least 
whereof to be real estate, and lying within this State, with the 
qualifications aforesaid, shall be capiable of being elected." " 

The next attempt to frame a constitution was in 1781. 
The convention met at Concord in June and finished its work 

" N. H. Prov. Papers. VII, 606. " Ibid., IX, 837-842. 

"Ibid., VIII. 2-5. "Ibid., IX. 839. 

"Ibid., IX. 834-837. 



NEW HAMPSHIRE 59 

in September, and it too was rejected at the polls.*'' This 
convention made a decided change from the customary prac- 
tice of representation. In the plan submitted to the people 
there were to be fifty members of the House of Representatives 
apportioned among the counties as follows: 

Rockingham, twenty, 
Strafford, eight, 
Hillsborough, ten, 
Cheshire, eight, 
Grafton, four. 

These were to be chosen by county conventions, out of their 
own number, instead of by the people directly. Each town 
having rateable polls could select one delegate to said conven- 
tion and larger towns in proportion. The qualifications for a 
delegate to these conventions were that he should be a 
Protestant — 

''and for two years next preceding his election an inhabitant 
of the town, parish or association, for which he may be 
chosen; . . ." ** 

When the convention assembled it was to divide each county 
on the following basis: 

"Each county shall contain as many districts as the same 
shall have representatives, and the districts in each county 
chall be so divided by the respective annual conventions, as 
each shall contain equal number of reteable polls, or as near 
as may be" ^^ 

When this had been done: 

". . . each convention shall elect by a majority of written 
votes out of the members who are chosen to compose such 
convention a representative for each district; and living 
within the district for which he may be chosen." ^^ 

The convention probably felt this matter of electing 
representatives would meet with objections for in its address 
to the people it said : 

" For this constitution in full see N. H. Prov. Papers, IX, 852-877. 

•• An Address of the Convention for Framing a New Constitution, etc., 39. 

"Ibid.. 40. "Ibid.. 41. 



60 NEW HAMPSHIRE 

"This mode will be found, perhaps, as free, equal, and 
perfect, as any that can be devised. The objection, that in 
this way each town will not know, nor have the power of 
designating its own representative, will, perhaps, on ex- 
amination, be found one of the strongest arguments in its 
favor." «i 

Their idea was that representatives would be chosen without 
the bitter partisan rivalry which sometimes accompanied the 
town elections. That the plan was rejected can be seen from 
the new constitution which was submitted to the people in 
1782 and from the address accompanying it. In this, as had 
been the custom, the towns were the unit of representation. 
The qualifications of representatives were as follows :^^ 

"Every member of the house of representatives shall be 
chosen by ballot and for two years at least next preceding his 
election shall have been an inhabitant of this State, shall have 
an estate within the Town, Parish or place which he may be 
chosen to represent of the value of one hundred pounds; . . . 
shall be at the time of his election an inhabitant of the Town, 
Parish or place he may be chosen to represent ; shall be of the 
Protestant Religion, and shall cease to represent such Town, 
Parish or place immediately on his ceasing to be qualified 
aforesaid. . . ." ^' 

Here we have for the first time a definite law requiring 
a representative to be a resident of his district. But this con- 
stitution shared the fate of its predecessors and was rejected. 
Another convention met in Concord in June, 1783. The 
constitution framed*^ was adopted October 31, 1783, and went 
into effect on June 1, 1784. Its provisions regarding qualifica- 
tions for representatives^^ are exactly the same as those of the 
proposed constitution of 1782 and so do not need to be re- 
peated. 

We have now reached a point where we have a residential 
qualification for representatives written into the fundamental 
law of New Hampshire and this fact automatically closes our 
study of this state. 

•• An Address of the Convention for Framing a New Constitution, etc., 11. 
" For complete constitution see N. H. Prov. Papers, IX, 877, 896. 
"Ibid.. IX, 887. 
" Ibid., IX. 896, 919. "Ibid., IX. 907-908. 



RHODE ISLAND 

The independent settlements around Narragansett Bay were 
given the opportunity of becoming a colony by the charter of 
March, 1644.^ This was peculiar in that while relieving them 
somewhat from the encroachments of their neighbors on three 
sides, it yet left to them the organization of a government. 

The first assembly under this charter did not meet until 
May, 1647, at Portsmouth. ^ The principal reason for this 
delay was the independence of each local town. Natural con- 
ditions probably had something to do with it. It is altogether 
probable that but for the constant pressure from their terri- 
tory-hungry neighbors union would not have come even at 
this date. This assembly was both a primary and a repre- 
sentative assembly. A majority of the freemen were present 
while Providence sent representatives.^ Three towns, Provi- 
dence, Newport, and Portsmouth were named in the charter, 
but Warwick was now admitted to equal share in the govern- 
ment.^ The official name of the colony according to this 
charter was Providence Plantations. 

The assembly of May, 1647, declared the government to be 

". . . Democratical, that is to say, a government held by 
ye free and voluntary consent of all, or the greater parte of 
the free inhabitants."^ 

It also provided for the use of the ballot in all elections,® 
This assembly did not pass a specific act creating a general 
court as they assumed the form and functions of such a body. 
But in an obscurely worded paragraph they did provide for 
representation of the towns by "committees of six".'' A 
specific provision was made for a court of election to meet 
annually on the first Tuesday after May 15, 
". . . If the weather hinder not."^ 
John Coggeshall was elected president, along with four assist- 

• R. I. Col. Recs., I. 143-146. 'Ibid., I. 156. 
'Ibid., I.. 147. 'Ibid., I.. 148. 

•Staples, Annals of Providence, 61. ^ Ibid., I, 149. Arnold, I, 202. 

• R. I. Recs.. I. 148. • Ibid., I, 149. 

61 



62 RHODE ISLAND 

ants, one from each town. Later in the session under the 
heading General Officers, provision was made for all of these 
to be chosen at the annual court of elections.^ In referring to 
the legislative body of the colony we will use the word assembly 
although that was not its correct name until after the charter 
of 1663. Before that date it was called the "Representative 
Committee" or the "General Court of Commissioners", 
usually the latter. 

When the second asembly met at Providence on May 16, 
1648, we find six representatives present from each town. 
Also at this time the representative system was definitely 
established by the following: 

"It is ordered that six men of each Towne shall be chosen, 
in whom ye General Courte shall continue: and each Towne 
here shall have the choice of their men if they please; or if 
any town refuse, the Courte shall chose them for them. . . ."'" 

In 1650 the assembly ordered that 

. . . "a committee of six men of each Towne shall be chosen 
out of each Towne to meet four dayes before the next General 
Courte, and to have the full power of the General Assemblie, 
and each committee man to be allowed two shillings and six 
pence per man a day by the Towne that chose them. . . ." ^^ 

Again, in October, 1650: 

"Ordered, that the representative committee for the 
Colonic shall always consist of six discreet, able men, and 
chosen out of each towne for the transacting of the affairs of 
the Commonwealth. . . ." ^^ 

Both of these acts of 1650 would seem to be open to the 
interpretation that the towns were limited to a choice of 
citizens as "committee men". Whether this was the case 
cannot be definitely stated. There were cases of non-residence 
representation, as we shall see later, but these all may have 
been the result of the assembly exercising its right of filling a 
town's quota of committee men in case the town failed to 
elect its full number. 



• R. I. Recs., I, 191. " Ibid., I, 228. 

'• Ibid., I, 209. ■» Ibid., I, 229. 



RHODE ISLAND 63 

The next act on the subject of representation was passed 
in 1651. By this time Coddington had arrived with his com- 
mission as governor of Rhode Island. So the colony was 
separated into two parts. The mainland towns, Providence 
and Warwick, continued the government under exactly the 
same form as when the colony was united. The assembly met 
alternately in Warwick and Providence, just as before it had 
met at each of the four towns in turn. 

Feeling perhaps that the changed conditions demanded 
new provisions regarding the assembly an act was passed in 
1651 which ordered 

". . . that the lawe makinge Assemblie of this CoUonie 
shall consiste of six men of every Towne of this Collonie ; and 
that these six men of every Towne, shall be chosen by the 
free inhabitants of every severall Towne, . . . and in case 
there be not a full appearance, the townsmen or men of the 
defective Towne or Townes that appeare, shall make up their 
number by choosing in the Towne where the Courte is kept, 
provided, they are freemen of the colony." ^^ 

This clearly provides for the choice of non-resident com- 
missioners, but that is not the most surprising thing about 
the act. The possibility of a town having commissioners or 
representatives not chosen by the freemen of the town is one 
that we cannot imagine being tolerated by a Massachusetts 
or a Connecticut community. 

The first assembly after the colony was reunited met in 
August, 1654.^^ It passed the following act on the constitution 
of its successors: 

"We agree, that ye Generall Court of this Collonie or 
Generall Assemblie, to transact all affairs except election, as 
making of laws, tryall, of generall officers, etc., be held by 
six commissioners, chosen by each Towne of ye Collonie."^* 

Clearly there is here no restriction on the choice of non- 
residents as commissioners. 

Prior to this date the records do not show a single in- 
stance of non-residence representation. For several of the 

>• R. I. Recs., I, 236. » Ibid., I, 276. »» Ibid., I, 277. 



64 RHODE ISLAND 

years from 1647 to 1655 the names of the commissioners are 
grouped together without any reference to the towns from 
which they came. But the names of the towns appear often 
enough to enable us to find some instance of such representa- 
tion if it had been practiced at all. On the other hand in the 
very first assembly which met after the passage of the above 
act, an assembly which met at Portsmouth in June, 1655, 
we find our first instance of non-residence representation. 
Half of Providence's committee were residents of Newport. 
From this time until the new charter of 1663, there are many 
cases of this, all of which will be given later. Reference has 
already been made to the power of the assembly to fill out a 
town's quota of commissioners. Two other phases of this 
appear in Rhode Island which differ from the practice in any 
other New England colony. 

The assembly of August, 1659, met in Portsmouth. Its 
first item of business was to suspend Robert Westcott, a com- 
missioner from Warwick, because of aid he had given New 
Plymouth in territorial claims against Rhode Island. Im- 
mediately after his removal we find this: 

"It is ordered that one of the four (here follow the named 
of four Warwick citizens) shall be chosen by this Assembly, 
by votes, to serve as a commissioner in the roome of Robert 
Westcott. . . ." ^® 

John Weekes was chosen. ^^ This is in decided contrast to 
Massachusetts where in case a man was suspended from the 
general court his town was at once notified to choose a suc- 
cessor. 

The first assembly under the charter of 1663 passed a law 
for filling vacancies among the deputies, as they had then 
come to be called. It was, 

"That at the Court of Election, in case any one of the 
Deputyes should be chosen into the office of Governor, 
Deputy Governor or Assistants, that it should be lawfull for 
such officer, so left out, to serve in the roome of the deputy 
chosen for that present court." ^^ 

" R. I. Recs., I. 420. " Ibid.. I., 420. '» Ibid., II, 33-34. 



RHODE ISLAND 65 

How this worked out in practice is shown by an incident in 
1666. At the court of election of that year there was a 
change of governors and also in several assistants. The 
assembly which convened immediately after the court of 
election ordered: 

". . . that the Generall Sergant be sent unto Mr. 
Benedict Arnold, Mr. John Card, Mr. Edward Smythe and 
Mr. John Greene, that it being by law their liberty to sitt and 
act irTthis present assembly as Deputies, the Courte doe de- 
sire their assistance." ^^ 

Arnold had been governor and the others assistants, but all 
had lost their places at the election to men who had been 
returned as deputies. It was just such an occurrence as the 
law of 1663 was framed to meet. 

In the records of the Rhode Island assembly in its early 
years we find reference to the strange fact that quite often the 
president of the colony was chosen moderator of the assembly 
while assistants were not infrequently chosen as deputies. 
This would be inexplicable if we did not keep in mind that in 
Rhode Island the legislative and executive functions were 
separate. The president and assistants by virtue of their 
office were not members of the court of commissioners.^*' 

Treating the towns in alphabetical order we will now take 
up the cases of non-residence representation appearing before 
1663. 

Newport 

In assembly of June, 1655, we find this item of business: 
"Captain Morris in y^ Roome of John Gould and William 
Lytherland in y^ roome of John Greene, both for Newport. "^^ 
The names of Greene and Gould both appear as the duly 
elected commissioners for Newport but they evidently did 
not appear. Whether the vacancies were filled by the four 
commissioners of Newport who were present, as provided for 
by the law of 1651,^^ or whether the whole assembly supplied 
the vacancy as in the case of Robert Westcott, the record does 

»» R. I. Recs., II, 147-148. » R. I. Records, I, 317. 

2» Osgood, 1, 358. Note. ^■i Ibid., 1, 236. 

5 



66 RHODE ISLAND 

not show. One provision, at least of the law of 1651, was not 
carried out. It provided that such vacancies should be filled 
from among the citizens of the town where the assembly was 
in session. This would mean that two citizens of Portsmouth, 
where the session was being held, would be chosen to fill the 
vacancies. Morris was a resident of Portsmouth^^ but Lyther- 
land lived in Newport.^^ 

The assembly of 1659 met at Portsmouth. One of New- 
port's commissioners to this was Captain Randall Houlden. 
He was a resident of Warwick^^ and a commissioner for War- 
wick for years. ^^ 

In the assembly of May, 1660, which also met at Ports- 
mouth, William Harris of Providence, was one of Newport's 
commissioners. In the October session he appear for his own 
town.^'' It seems queer that Harris could have been elected 
to any office especially outside of his own town. He was the 
head of the Massachusetts faction in Rhode Island, and a few 
years before this Roger Williams had had him tried on the 
charge of high treason for the promulgation of the doctrine 

. . . "that he that can say it is his conscience ought not 
to yield subjection to any human order among men." ^^ 

In October, 1660, John Sweet of Warwick, where the 
assembly met, served as commissioner for Newport. He had 
had previous experience as commissioner for Warwick.^^ 

Providence 

Providence has the distinction of being the first Rhode 
Island town to use non-resident commissioners. She also 
employed them to a greater extent than her sister towns. 

In assembly of June, 1655, which met at Portsmouth, 
half of Providence's commissioners were Newport men. 
They were William Dyre, James Barker, and Mathew West.^" 
Barker again represented Providence in assembly of May, 
1661, which met at Newport.^^ 

" R. I. Recs., I, 300. '» Ibid., I, 364. 

» Ibid., I, 301. "Ibid., I, 272, 302, 432. 

« Ibid., I, 302, 419. »» Ibid., I, 300, 301, 316. 

" Ibid., I, 241-508. " Ibid., I, 437. 
"Ibid., I, 24, 299, 428, 431. 



RHODE ISLAND 67 

The assembly of March, 1656, met at Warwick. One of 
Providence's commissioners was Benedict Arnold. Arnold 
was one of the prominent men of the colony and had formerly 
been a resident of Providence,^^ but now lived in Newport.^^ 
He later represented Providence again in an assembly which 
met in Portsmouth in May, 1660.^* 

John Tripp of Portsmouth, and a commissioner for that 
town in several assemblies, represented Providence in an 
assembly which met in Portsmouth in October, 1656.^* 

In May, 1657, the assembly met in Newport. Providence 
chose a resident of that town, Henry Bull, as one of her com- 
missioners. Bull had formerly been a commissioner for 
Newport.^^ 

Providence did not have another non-resident com- 
missioner until the assembly of May, 1660, which met at 
Portsmouth. In this it was represented by William Brenton,^'' 
president of the colony, and a resident of Portsmouth.^* 
About this date he moved to Newport and later served several 
times as a commissioner for that town. 

The assembly of August, 1661, met in Portsmouth. Again 
we find half of the commissioners for Providence were non- 
residents. They were : Joseph Toney of Newport, PhilipTabor 
of Portsmouth, and John Anthony, also of Portsmouth,^^ 

Torrey had a long record as a commissioner for Providence. 
He represented that town in the following assemblies: 

At Warwick in October, 1660. 
At Portsmouth in August, 1661. 
At Portsmouth in October, 1663. 
At Newport in November, 1663.^" 

During the time covered by the above session he had also 
served his own town twice, in October, 1662, and in May, 
1663.^1 With Torrey in October, 1663, Edward Thurston, 
also of Newport, served as a commissioner for Providence.^^ 

" R. I. Recs., I, 14, 31, 327; Staples, 48. » Ibid., I, 82, 109, 299. 

"Ibid., I, 300; Staples, 48. >' Ibid., I, 300, 301, 447. 

"Ibid., I, 428. *" Ibid.. I, 431, 447, 504, 508. 

"Ibid., I, 300, 304-501, 345. "Ibid., I, 492, 501. 

" Ibid., I, 87, 300, 304, 354. « Ibid., I, 301, 504, 507. 
"Ibid., I, 427. 



68 RHODE ISLAND 

The assembly of November, 1663, met at Newport to hear 
the new charter read which had just been brought by Captain 
George Baxter.^^ At such an important time as this Providence 
had two non-residents among her commissioners, Joseph 
Torrey, mentioned above, and Richard Tew, also of Newport.^^ 
Staples says these two men were elected by the other com- 
missioners to replace Roger Williams and Stephen Arnold 
who had been elected by their townsmen but failed to attend.*^ 

Portsmouth 

In assembly of May, 1657, which met at Newport, Ports- 
mouth was represented by two Newport citizens, John 
Greene and Edward Greemann.*^ This Greene should not 
be confused with the Greenes of Warwick. These were father 
and son and the names always appear as John, Jr., or John, Sr., 
in their frequent appearances as Warwick commissioners. 

In an assembly of November, 1658, which met at Warwick, 
one of Portsmouth's commissioners was Benedict Arnold of 
Newport. After this Arnold served twice more in this ca- 
pacity for Portsmouth; in assembly of May, 1659, at Provi- 
dence; and one of October, 1660, at Warwick.^'' 

The May assembly of 1659 met at Providence. In this 
Portsmouth had three non-resident commissioners: Benedict 
Arnold mentioned above, Roger Williams of Providence, and 
Joseph Clarke of Newport. Arnold and Clarke were both 
colony officials at this time, Arnold being president.^^ 

Thomas Greene of Warwick, twice served as a commis- 
sioner for Portsmouth. First in assembly of May, 1662, 
which met at Warwick, and then in one of June, 1662, at the 
same town.^® 

Warwick 

Warwick's first non-resident commissioner was Benedict 
Arnold of Newport,^" a man who has the unique distinction 
of having represented every town in the colony. He was a 

" R. I. Recs., I, 508. " Ibid., I, 300, 394. 408, 431. 

"Ibid., I, 301. "Ibid., I, 299. 301. 407, 408. 

" staples. 135. *» Ibid., I, 302, 468, 480. 

" R. I. Recs., I, 301. 354. '» Ibid., I, 300. 



RHODE ISLAND 69 

commissioner for Warwick in an assembly which met at Ports- 
mouth in May, 1656.^^ 

In the fall session of 1656, which met at Portsmouth, 
John Sanford of Portsmouth, was one of Warwick's com- 
missioners. Sanford was one of the most prominent men in 
the colony and served his home town in many asemblies as 
commissioner. At this time he was general recorder, treasurer, 
and clerk of the court of commissioners.^^ He is a good 
illustration of two practices common to all the colonies. 

(a) Multiplication of ofifices in the hands of one man. 

(b) Tendency on part of towns when choosing a non- 
resident representative to pick some prominent man, pre- 
ferably a colony official. 

Two of Warwick's commissioners in assembly of May, 
1661, which met in Newport, were William Dyre and Peter 
Wallman. Both were residents of Newport and the latter was 
at this time solicitor general of the colony. He later appears 
as a commissioner for Portsmouth^^ but had evidently moved 
there.^* 

In assembly of August, 1661, half of Warwick's com- 
missioners were non-residents. This assembly met at Ports- 
mouth. The non-resident commissioners were John Porter 
of Portsmouth, Thomas Brownell of Portsmouth, and William 
Dyre of Newport.^^ 

This brings us down to the time of the new charter. But 
before taking it up let us examine briefly a very curious 
custom regarding representatives in Rhode Island which is in 
marked distinction from the practice in other colonies. In 
this state a man could be a commissioner in the assembly and 
yet not be a freeman of the colony. That he be a freeman of 
a town was the only requirement. 

"The path to the provincial suffrage lay through freeman- 
ship of the towns; he who had been accepted as an inhabitant 
of one of the towns and admitted as one of its freemen could 
hope, as a matter of course, to be granted the colonial free- 
manship. The charter of 1644, unlike that of 1663, did not 

" R. I. Recs., I, 337. " Portsmouth Town Records, 97, 100. 

" Ihid., I, 52, 300, 336, 345, 326, 501. " R. I. Recs., I, 300, 301, 447. 
" Ihid., I, 301, 302, 437, 447, 468. 



70 RHODE ISLAND 

use the word freemen, but simply incorporated the "in- 
habitants" of the three towns. Yet the practice was to require 
a formal vote and admission to the town and then a similar 
entrance into the colonial freemanship." ^^ 

An example of the practice mentioned is Obadiah Holmes, 
who was a commissioner for Newport in March, 1656, but was 
not made a freeman of the colony until the Court of Election 
in May, 1656.^^ Edward Erman served as a commissioner for 
Providence in March, 1658, but was not admitted as a free- 
man of the colony until May, 1658.^^ That the same practice 
was followed after the new charter was obtained is shown by 
the following case : Nathaniel Waterman served as a deputy^* 
for Providence in 1668. He was admitted as a freeman of the 
colony in 1670.^" 

The new charter which reached the colony in November, 
1663, made several changes in the names of governmental 
agencies, which changes we shall follow hereafter. First, the 
name of the colony was changed to Rhode Island and Provi- 
dence Plantations.^^ The name of the law-making body was 
changed to Gneneral Assembly; commissioner to deputy; 
and president to governor. These changes brought Rhode 
Island into similarity to the other New England states. The 
charter provided for a governor, deputy governor, and ten 
assistants, all of whom were named in it, and who were to 
continue in office until May, 1664, when the colony would 
have the privilege of electing whom it would to these ofifices.^^ 

Provision was made for two annual sessions of the assembly, 
one on the first Wednesday in May, the other on the last 
Wednesday in October.^^ Instead of meeting in different 
towns of the colony all sessions were to he held at Newport. 
A change was made in the apportionment of deputies. New- 
port was still to have six. Providence, Portsmouth, and 
Warwick four each, while any other towns which might be 

" McKinley, 440-441; R. I. Recs., I, 263, 280, 340, 387, 426. 

" R. I. Recs., I, 326-327, 336. 

»» Ibid., I, 336, 387. 

" This term was used after charter of 1663 went into eSect. 

«« R. I. Recs., I, 222, 364. 

" Ibid., II, 6. " Ibid., II, 7, 8. " Ibid., II, 8. 



RHODE ISLAND 71 

organized later were to have two each.^* The deputies were 
to be 

. . . "elected or deputed by the majour part of the ffreemen 
of the respective towns or places ffor which they shall bee so 
elected or deputed. . . ." 

This contains no restriction limiting the choice to residents. 
The assembly had almost unlimited freedom in making laws, 
being restricted only that they 

. . . "bee not contrary and repugnant unto, butt, as neare 
as may bee, agreeable to the lawes of this realme of England, 
considering the nature and constitutione of the place and 
people there. . . ." "^ 

Rhode Island historians point out that that last qualifying 
phrase, which was also in the former charter, removed all 
limitations and restrictions on the assembly's legislative 
power.^^ 

The first town to join the original four was Block Island 
in 1664.^^ Two deputies from it were in the Assembly of May, 
1665. They must have been irregularly chosen, as a long act 
was passed "Concerning Block Island Deputies".®^ The 
gist of this was that since most of the inhabitants of Block 
Island had lived in other colonies and so were not familiar 
with Rhode Island rules; and since by admitting the two 
deputies they would learn the laws of the colony and thus be 
able to instruct those at home, they should be admitted to the 
assembly. Other towns followed from time to time, as 
Westerly, East Greenwich, Jamestown, and Kings Town, 
making a total of nine towns represented by the end of the 
century. 

In all the colonies we have studied hitherto this expansion 
of settlements was always accompanied by an increase in the 
use of non-resident representatives. But such was not the 
case in Rhode Island. The records from 1663 to 1700 yield 
very few examples of this practice. Right here it might be 
noted that there was no assembly during the years 1687-89, 

" R. I. Recs., II, 8. " R. I. Recs., II, 56-58. 

"Ibid.,U,S. "Ibid., II, 121-122. 

«« Arnold, I, 293-294. 



72 RHODE ISLAND 

while the records for the assembhes of May, 1692, and for the 
years 1693, 1694, and 1695 are missing. The records for the 
other years are incomplete but show the following cases of 
non-resident representation. 

Jamestown 
Jamestown was represented in the assemblies of 1679-80-81 
by John Fones (or Foanes),^^ a resident of Kingston,^" and a 
holder of many prominent offices in the colony. 

Portsmouth 

There is not a clear case of Portsmouth having employed 
a non-resident as a deputy during this period. 

In the assembly of May, 1683, one of her deputies was 
Thomas Greene. ^^ Now Greene was a resident of Warwick 
and a deputy for Warwick in several assemblies. It is very 
probable that this is an error of the secretary, as five deputies 
are listed for Portsmouth and only three for Warwick. As 
four was the allotted number for each of these towns, and 
no more, Greene's name probably should have been listed 
under Warwick. 

Providence 

Providence furnishes the first example of non-residence 
representation under the charter of 1663. In October, 1672, 
Thomas Borden of Portsmouth, ^^ ^^s deputy for Providence." 

Providence was represented by Edward Smith of Newport, 
in May, 1675.''* Smith was a former resident of Providence.'^ 
Ten years later, in 1685, Major John Coggeshall of Ports- 
mouth'^ served as a deputy for Providence." 

Warwick 
In assembly of May, 1680, Warwick was represented by 
Robert Burdick, who was a resident of Westerly and later 
represented Westerly.'^ 

•> R. I. Recs., Ill, 29, 84, 89. " Ibid., I, 300. 

"Updike, I, 333. ■"Ibid., II, 465. 

"R. I. Recs., Ill, 121. -"Ibid., II, 396, 527. 

"Staples, 61. " Records of the Town of Portsmouth, 163-174-177-212-228. 

"R. I. Recs., Ill, 167. ''Ibid., II, 388; III, 68, 84, 121, 167. 



RHODE ISLAND 73 

Westerly 

In 1679 the deputy for Westerly was Joseph Jencks.^^ 
The records do not enable us absolutely to decide his place of 
residence but they point to Providence. 

In assembly of 1680 both of Westerly's deputies were non- 
residents. They were Henry Tew and Edward Thurston, 
both of Newport. Tew was a military ofiEicer of the island 
while Thurston served as a deputy for his town in several 
assemblies.*" 

The difference in the number of instances of non-residence 
representation between the period preceding the charter of 
1663 and that following it is very striking. This later period 
is also characterized by an indifference on the part of the 
towns in sending deputies to the assembly. From 1647 until 
1663 there was not a single assembly at which all the towns 
were not represented. This may have been due to the as- 
sembly's power of filling a town's quota of deputies in case 
the full number did not appear. 

To meet the conditions which arose after 1663 the colony 
at first used less stringent measures than did her sister colonies. 
The records of other colonies are full of cases where fines were 
levied against this town or that for failing to send deputies. 
Contrast with that method the following. In September, 
1666, the deputies and assistants from Warwick did not 
appear at Newport so the assembly voted that a boat be pro- 
cured and sent to Warwick 

. . . "to signify to the Magistrates and Deputyes of that 
towne, the Courts desire of their advice and assistance." 

One of Newport's deputies was delegated for this mission 
and the whole expense was to be borne by the colony.*^ 

Finally in 1672 a long act was passed levying a fine on 
assistants and deputies for non-attendance. One of the 
provisions of this was an oath*^ to be taken by all deputies. ^^ 
This had never been required before and opposition developed 
against it. Providence protested that 

" R. I. Recs., Ill, 29. »« Ibid., Ill, 84, 97, 121, ISO, 332, 368. " R. I. Recs.. II, 151. 
*2 "Engagement" was the word used in Rhode Island. " R. I. Recs., II, 474. 



74 RHODE ISLAND 

. . . "it is contrary to the liberties granted to us in our 
charter. . . ." ^^ 

at the very next assembly Warwick's deputies refused to take 
the engagement. ^^ The requirement for deputies to take an 
engagement was repealed in 1677.^^ It had led to much 
trouble and Warwick had been deprived of representation 
due to the refusal of its deputies to conform to the require- 
ments. 

We have seen that prior to 1663 the assembly or general 
court of commissioners as it was then called, met alternately 
in the four towns of the colony. The charter of 1663 desig- 
nated Newport as the place of meeting. This continued to be 
the seat of the assembly until 1683 when it was voted to hold 
the fall session annually at one of the mainland towns, either 
Providence or Warwick. The next year provision was made 
that the fall session should alternate between Warwick and 
Providence.^'' 

Until near the close of the century Rhode Island's legisla- 
ture met in a single body. Agitation for division into two 
houses began as early as 1644. It was especially active in 
1665; while in March, 1666, the division into two houses was 
made. But the assembly of September, 1666, voted to 

. . . "sit together" 

and to defer final action on question of separation until the 
October session. This session after 

"long and serious" 

debate decided to make no change. ^^ The division was 
finally made by the act of May 6, 1696.^^ 

In discussing other colonies we have seen that the ex- 
tension of settlements was accompanied by an increase in 
non-residence representation. In Connecticut to account 
for so little representation of this kind at a certain period we 

»< staples, 155. <"■ Ibid.. U, 5S4:. 

" R. I. Recs., II. 482. '■'Ibid., Ill, 125, 161. 

"Ibid., II, 63, 124, 130, 131, 144, 145, 150, 151, 180. 

'"Ibid., III. 313; Laws and Acts of R. I., 1636-1705, 39. 



RHODE ISLAND 75 

have offered as a reason the proximity of the towns to navi- 
gable water. In Rhode Island both of these hypotheses seem 
to fall down, for during the period of 1647-1663, when the 
settlements were proximate, and all on navigable water, 
there was by far a greater use of non-residence representatives 
than at any later period of the colony's history. Two things 
explain this very satisfactorily, however. First, the unusually 
large number of deputies, six allotted to each town, which 
naturally caused many vacancies, and secondly, the power of 
the assembly to fill these vacancies with residents of the 
town where the assembly was sitting. 

As the century draws to a close the custom of employing 
non-residents as deputies was evidently disappearing, but no 
law appears on the statute books forbidding it. 

In continuing this study into the eighteenth century 
actual cases of non-resident representation have been given 
only for the first ten years. This was a long enough period to 
show the practice which without doubt existed until there was 
a definite law on the subject. This practice was for the towns 
to choose a non-resident only in extreme cases, generally 
preferring one of their own citizens. 

Kingston used two non-resident deputies during the first 
ten years of the eighteenth century, and each time she called 
on Westerly, queer as that seems, considering the geographical 
position of the two towns. In October, 1705, she was repre- 
sented by Edward Larkin, who represented his home town the 
following year. In the May assembly of 1707, Kingston was 
represented by Christopher Champlin of Westerly. Champ- 
lin was a prominent man in the colony and had previously 
represented his home town.^° 

New Shoreham was the name under which the residents 
of Block Island became an integral part of the colony. In 
the assembly of October, 1705, they chose as their deputy 
Captain Nathaniel Niles, a resident of Kingston. ^^ In this 
connection it is interesting to note that in October, 1705, 

•• Rhode Island Records, III, 68, 550. 564; IV, 3, 17, 224. 
•■ Ibid., Ill, 550; Updike, I, 435. 



76 RHODE ISLAND 

while Kingston went outside her boundaries for a deputy one of 
her own prominent citizens was chosen by a neighboring town. 

Newport in 1701 chose as one of its deputies one of the 
prominent men of the colony, Major John Coggeshall of 
Portsmouth, whom we have already met as a deputy for 
Providence and who quite often represented his home town.^^ 

Richard Green, of Warwick, a prominent man in Rhode 
Island affairs, represented Portsmouth in the Assembly of 
1702.93 

During this period of ten years Providence but once made 
use of a non-resident as deputy and that one time they chose 
an experienced legislator as was so often done by the towns 
making use of non-resident deputies. The man chosen to 
represent Providence in May, 1709, was James Brown, a 
resident of Newport. He had represented his home town in 
1706-07-08, and did so again in September, 1709.^4 

The last instance of non-resident representation during 
this period was in 1709, when William Wilkinson, of Provi- 
dence, represented Westerly^^ in the October session of the 
Assembly. 

As has been said above, a checking of the lists of deputies 
through the first seventy or eighty years of the eighteenth 
century would, in all probability, show now and then a case 
of non-resident representation until the practice was declared 
unlawful. 9^ Just when that was we cannot definitely state, 
but it was between the years 1772 and 1783. A careful search 

" R. I. Records, III, 185, 310, 428, 472. Recs. of Portsmouth, 163, 174, 212. 

"Ibid., Ill, 443, 473. 

^*Ibid., Ill, 564; IV, 17, 47, 67, 69, 77. 

''Ibid., IV, 80, 128. 

»6 It is interesting to note that in Rhode Island we have not found a single instance 
of a deputy representing two towns at the same time as sometimes happened in Con- 
necticut and Massachusetts. In this connection the following may be of interest: 

"Whereas this Assembly at the last session empowered such Inhabitants of the 
Town of Newport, as were Freemen thereof at the time it was taken Possession of by the 
Enemy, to meet at Providence, on the sixteenth instant, and choose Deputies to represent 
the said Town; who accordingly met, and among others chose Paul Mumford, Esq., 
who having purchased an Estate in Harrington, and removed there with his family, is also 
elected a Deputy for the said Town of Harrington; whereby a Vacancy is made in the 
Deputies of Newport; It is therefore Voted and Resolved, That such Inhabitants of the said 
Town of Newport as were Freemen thereof at the Time it was taken Possession of as 
aforesaid, consisting of a number of not less than Seven, be empowered to meet together, 
at the State-House in Providence, on Tuesday the Sixth Day of May next, at Five o'clock 
in the afternoon to choose another Person in the Room of the said Paul Mumford." 
Reprints of R. I. Acts and Resolves — April, 1777, 5. 



RHODE ISLAND 77 

through all the Colonial Records and Digests of Colonial 
Law^^ fails to reveal the exact statute which established a 
residential qualification for deputies in the General Assembly. 
The dates given between which the requirement became 
operative were arrived at in the following manner : 

During the eighteenth century Rhode Island issued eight 
volumes (digests) of colonial law. The dates of these were 
1705, 1719, 1730, 1744, 1752, 1767, 1772, and 1798. In the 
first six the law on the subject of representation is practically 
the same. In the digest for 1767 we find 

"An Act, regulating the Manner of admitting Freemen, and 
directing the Method of electing Officers, in the Colony." 

The portion of the act bearing directly on qualifications for 
deputies reads, 

"And be it further Enacted by the Authority aforesaid, 
That no Person shall be elected to the place of a Deputy, to sit 
in the General Assembly of this Colony, but such as are 
Freeholders^^ therein, and Freeman of the same, and that each 
respective Tovv^ shall elect their Number of Deputies, as 
stated in the Charter, at the aforesaid Town-Meetings in 
April and August." ^^ 

There is certainly nothing in the above law limiting the 
towns to the choice of a resident as deputy. 

The digest published in 1772 has the following title page: 

"Acts and Laws of the English Colony of Rhode Island 
and Providence — Plantations. In New England in America; 
Made and Passed since the Revision in June, 1767". 

" "In considering the nature of these Digests, it must not be forgotten that they 
represent only to a small extent the laws governing the Colony. The statutes of England 
were the real laws here from the beginning until 1744; from that time only certain of the 
statutes of England were in force." 

Introduction to Digest of Rhode Island Colonial Laws of 1719, 11. 
»8 A freehold qualification first appeared in 1724. It was changed from time to time, 
the amount required differing. At the time of the above quotation (1767), the exact re- 
quirement was: 

"And be it further enacted by the Authority aforesaid, that no Person whosoever 
shall be permitted to vote, or act as a Freeman in any Town-Meeting in this Colony, 
but such only who are inhabitants therein, and who, at the Time of such their voting and 
acting, are really and truly possessed, in their own proper Right, of a Real Estate, within 
this Colony, to the full value of Forty Pounds, or which shall rent for Forty Shillings per 
annum, being an Estate of Fee-simple, Fee-tail or an estate in Reversion, which qualifies 
no other Person to be a Freeman, or at least an Estate for a Person's own Life, or the eldest 
son of such a Freeholder. And that no Estate of a less Quality shall entitle any Person to 
the Freedom of the Colony." 

Acts & Laws of R. I., 1767, 78. 
"Acts and Laws of R. I., 1767, 86. 



78 RHODE ISLAND 

This volume contains no law on representation, so it is fair to 
assume that the law quoted from the digest of 1767 was still 
in force. 

In 1783,^"" however, the following law was passed regard- 
ing the representation of New Shoreham (Block Island) : 

"Be it enacted by the General Assembly and by the 
authority thereof it is enacted, That the freemen of said town 
of New Shoreham, when legally convened in town meeting 
for choice of Representatives to the General Assembly, be 
and they are hereby authorized and empowered to choose 
any person, being a freeman of any town of the state, who is 
seized, in his own right, of a freehold estate in the said town 
of New Shoreham, to represent them in the General Assembly. 
Provided, nevertheless. That such person, so elected be not 
allowed to act or vote as a freeman of the town of his residence, 
during the time he shall represent the said town of New 
Shoreham as a Deputy; and that this act shall not be brought 
into precedent by any other town in this State." ^"^ 

The law just given evidently arose out of a concrete case 
affecting New Shoreham which came before the Assembly in 
June, 1783. What this was we can see from the following: 

"Whereas from the insular Situation of the Town of New 
Shoreham, it will often be impracticable for the Deputies of 
the said Town, who reside therein, to attend this Assembly: 
And whereas the Freemen of the said Town, influenced by the 
aforesaid Consideration, have made choice of Ray Sands, 
Esq., an Inhabitant of the Town of South-Kingston, who is 
seized of a freehold Estate in the said Town of New Shore- 
ham, to represent them in Generall Assembly; It is there- 
fore Voted and Resolved, That the choice of the said Ray 
Sands as aforesaid be and the same is hereby approved, and 
that the Freemen of the said Town of New Shoreham be and 
they are hereby empowered to choose any Person, being a 
Freeman of any Town in the State, who is seized in his own 
right of a Freehold Estate in the said Town of New Shoreham 
to represent them in General Assembly; any Law, Custom or 
Usage, to the contrary notwithstanding; Provided, neverthe- 
less. That such Person so elected be not allowed to act or vote 
as a Freeman of the Town of his Residence, during the Time 

'»» This is a marginal date which appears beside this law in the Digest of 1798. 
101 The Public Laws of R. I., 1798, 89-90. 



RHODE ISLAND 79 

he shall represent the said Town of New Shoreham as a 
Deputy; and that this Resolution shall not be brought into 
Precedent by any other Town in this State." ^°2 

It is quite evident from the above that by 1783 the prac- 
tice of choosing only residents as deputies had come to be 
recognized to such an extent that any variation from it 
required the consent of the General Assembly. 

The first definite law demanding a residential qualification 
for deputies to the General Assembly appears in the Digest 
of 1798. But it bears no date of passage, so for the reasons 
given above we have stated that such a requirement became 
operative some time between 1772 and 1783. In the Digest 
of 1798, is a long act entitled : 

"An Act regulating the Manner of Admitting Freemen, and 
directing the Method of electing Officers in this State." 

Section fifteen of this act reads: 

"And be it further enacted. That no person shall be elected 
to the place of a Representative to sit in the General Assembly 
of this State, unless he be a freeholder of the town for which 
he shall be elected and a freeman and inhabitant of the same; 
having and excepting the provision made by law for New 
Shoreham. . . ." ^°^ 

To bring our study of Rhode Island to a close it is only 
necessary for us to examine the repeal of the exception made 
in the requirement of residence representation in the case of 
New Shoreham. The record of this repeal is brief. In a 
volume of Rhode Island Public Laws, published in 1810, the 
following occurs under date of 1804: 

"An Act to repeal an Act, entitled 'An Act regulating the 
choosing of Representatives to represent the Town of New 
Shoreham in the General Assembly of this State'." ^°* 

This is all that appears, but with its passage non-residence 
representation came to an end in Rhode Island in 1804. 



"2 Reprints of R. I. Acts and Resolves, June, 1783, 3. 
103 The Public Laws of R. I., 1798, 123-124. 
'o*Ibid., 1810, 67. 



CONNECTICUT 

From the very beginning of the Connecticut settlement 
Hartford was the poHtical center. A general court met here 
on May 1, 1637, composed of magistrates and deputies from 
the three towns whose inhabitants had emigrated from 
Massachusetts. Each town sent two magistrates and three 
deputies. Each town's deputation was called its committee.^ 

From this date until 1639 whatever constitutional author- 
ity the Connecticut government had it drew from Massa- 
chusetts through its relation to that colony, it having been 
governed for its first year by commissioners appointed by the 
general court of Massachusetts. It is probable that these 
commissioners, at the end of their official term of office, 
summoned the general court of May 1, 1637.^ 

The Fundamental Orders were adopted at Hartford on 
June 14, 1639. The body by which this was done was probably 
a convention of all the freemen of the colony. This was 
Connecticut's constitution until the royal charter of April 
23, 1662. 

By the Fundamental Orders two annual sessions of the 
general court were provided. Each of the three original towns^ 
was to send four deputies, and any towns that might be added 
later were to be granted such number of deputies as the 
general court thought proper in proportion to the number of 
inhabitants.^ 

The spring session of the general court was like the May 
session of the Massachusetts court in that it was a court of 
election. By the Fundamental Orders this was to be held on 
the second Thursday in April. But this date proving incon- 
venient, it was changed, in 1646, to the third Thursday in May. 
This session was attended by all the freemen of the colony 
for the purpose of choosing the governor, deputy governor, 
and at least six assistants. From the very beginning Con- 

» Conn. Col. Recs., I, 1-9. » Hartford, Weatherfield, Windsor. 

' Osgood, I, 305. ' Conn. Recs., I, 24. 

80 



CONNECTICUT 81 

necticut used the ballot and a system of nominations. All 
voting at the court of election was by ballot. Persons for 
whom votes were cast were nominated by the secretary, 
who could only nominate some one proposed in a previous 
general court.^ 

The governor was simply the presiding officer of the 
general court, which in Connecticut did not divide into two 
Houses until October 13, 1698.^ The functions of the general 
court were administrative, legislative, and judicial. For a 
legal session there had to be present at least four assistants in 
addition to the governor and a majority of the deputies.''' 
However, in 1661, the "river towns" obtained a modification 
of this rule. In an act of October third of that year the towns 
were requested to reduce their representation by half because 
of the growing expense of the general court. In addition it 
was provided that in case a general court had to be called at a 
time inconvenient for outlying towns, it should have power to 
act with less than a majority of the deputies in attendance, 
provided that some were present from the river towns and 
there were present also the requisite number of magistrates.* 

The Fundamental Orders contained a unique provision by 
which the general court could be called in session by the 
freemen against the opposition of the colony officials. Under 
such circumstances the majority of the freemen could order 
the constables of the several towns to call a meeting of the 
general court. Then after choosing a Moderator they were in 
legal session.^ 

The royal charter of April 23, 1662, gave Connecticut the 
constitution which was to last it through its colonial period 
and well into its history as a state. This provided for a 
representative assembly much like that already in existence, 
although the charter used the words General Assembly.^" 
It provided for two regular meetings, second Thursday in May 

'Conn. Col. Recs., I, 21, 22, 140. 'Ibid., I, 24. 

« Ibid., IV, 267, 282. 8 /fe/d., I, 372. 

» Ibid., I, 23. Due to the death of the governor and the absence of the deputy governor 
there was a case of this kind in 1653 (Conn. Recs., I, 252). 

" "General Court" is used in the colony records until the division into two houses 
October, 1698 (Records IV, 282). 
6 



82 CONNECTICUT 

and second Thursday in October, Other sessions could be 
called by the governor. The number of deputies each town 
could send was limited to two, 

". . . not exceeding twoe Persons from each place, Towne 
or Citty, whoe shall bee from tyme to tyme thereunto Elected 
or Deputed by the major parte of the freemen of the respective 
townes, Cittyes and Places for which they shall bee soe 
elected or Deputed, etc." ^^ 

Nothing in the above could be construed to restrict repre- 
sentatives to residents of the towns sending deputies, so 
Connecticut followed the common English practice of the 
time. It is impossible, however, to check any actual in- 
stances of non-resident representation prior to Court of 
Elections of May, 1670; for in the record before that date 
the names of the deputies only are given and not the names of 
the towns which they represented. 

Taking in alphabetical order the towns which show in- 
stances of non-resident representation we have the following: 

Branford was prepresented in the May court of 1693 by 
William Ely,^^ a resident of Lyme, and a deputy of Lyme,^^ for 
years in the general court." 

Fairfield was represented in May Court of 1684, by John 
Burr, a resident, and John Taylor^^ of Windsor.^^ 

Farmington was represented in General Court of October, 
1693, by Ensign Thomas Judd of Waterbury. He, at the same 
time, was deputy for his own town. The same thing was the 
case in Court of Elections in 1700, only here Judd's name 
appears as Lieutenant.^'' He was a deputy from his own town 
almost constantly from 1684-1705.^^ 

Greenwich made greater use of non-residents as deputies 

"Conn. Recs., II, 5. "Ibid., IV, 92. i> Ibid., IV. 3-532. 

"The Editor of the Connecticut records thinks that this is an error of the colony- 
secretary and that Eleazer Stent's name should be substituted as Branford's deputy. 
While this is possible such an error hardly seems probable. The only thing favoring 
such a view is the fact that Stent represented Branford for years. There was, in the records 
of the time, much carelessness in the use of proper names. 

"Conn. Recs., Ill, 139. 

le Ibid., II, 223: Stiles, History of Windsor, 126, 224, 228, 352. This name furnishes 
an illustration of note 4 on Page 52. In Connecticut records this name appears as Tyler, 
in Schenck's History of Fairfield as Tyler, but in Stiles' history as Taylor. 

"Ibid., IV, 104, 105, 150, 318, 319. 

'»Ibid., IV, 3-521. 



CONNECTICUT 83 

than perhaps any other Connecticut town. One man who 
often represented it as well as other towns in which he did not 
reside was John Banks, a lawyer of Fairfield. ^^ This shows 
the special prestige of lawyers in the legislative field which we 
have to-day, had its beginning even at this early date. Banks 
represented Greenwich in October, 1673; Court of Elections, 
1677; October, 1677, and October, 1678.20 In all the above 
cases Banks was at the same time a deputy from his home 
town, while in October, 1677, he represented the three towns 
of Greenwich, Fairfield, and Rye.^^ In the last three Courts 
mentioned above Banks had associated with him as Fair- 
field's other deputy William Pitkin of Hartford ,^2 who was 
deputy for Hartford at the same time he was serving for 
Fairfield. 2^ 

These two men. Banks and Pitkin, furnish more examples 
of "double" representation than can be found in the whole 
legislative history of Massachusetts up to the abolishment of 
non-residence representation in 1693. Massachusetts shows 
no case of a man representing three towns as Banks did in 
1677. It is interesting to speculate whether in cases like this a 
deputy would have three votes on any measure before the 
General Court. The records are silent on the subject but it 
seems very probable that such was the case. 

In October Court of 1683 the deputy for Greenwich was 
Joseph Theale.^^ He was a resident of Stamford and had 
represented his home town quite of ten. ^^ 

Haddam had as its deputy in the General Court of October, 
1673, John Gilbert.^^ Gilbert, though a non-commissioned 
officer in the militia, was quite an important personage in 
military affairs, having been employed as messenger for the 
colony on several long journeys. He lived in New Haven.^^ 

Lyme furnishes three instances of non-resident repre- 
sentation. In October, 1676, its deputy was Joseph Peck,^^ 

" Conn. Recs., II, 521; Schenck, History of Fairfield, I, 351. 

"•Ibid., II, 209, 300, 318; III, 16. 

" Ibid., II, 300. 26 Huntington, History of Stamford, 63. 

"Ibid., II, 518. 26 Conn. Recs., II, 209. 

"Ibid., II, 300, 318; III, 16, 17. ^^ Ibid., 11,524. 

" Ibid., Ill, 121. " Ibid., II, 286. 



84 CONNECTICUT 

a resident of New Haven.^^ In June, 1692, and May, 1693, it 
was represented by Isaac Bronson.^'^ Bronson was a resident 
of Waterbury, being one of the patentees of that place.^^ 
He later represented his home town.^^ 

Middletown is one of the towns from which, because of its 
proximity to the seat of government, we should not expect to 
find any examples of non-residence representation. But we 
have two examples here. In October, 1676, one of its deputies 
was John Graves. In this same session Graves represented 
his home town, Guilford.^^ Graves is a good example of what 
was plainly a practice in Connecticut during the seventeenth 
century, that is, the long continuation in office of a deputy 
who had proved himself able and worthy. Graves represented 
his town at no less than twenty-eight sessions of the General 
Court.34 

In the October session of 1696, one of the deputies for 
Middletown was John Hall, who at the same time represented 
his town of Wallingford. Prior to this he had been Walling- 
ford's deputy and later represented both it and Middletown 
in several sessions.^^ A causal glance at the Records might 
seem to indicate that this name, John Hall, might be that of 
two different men. The name was a common one, occurring 
often in the records, which makes it hard to trace. Middle- 
town had had a John Hall, but he died before this date, on 
January 22, 1695.36 The Wallingford Hall lived until 1721.37 

Preston, in May, 1693, September, 1693, and October, 
1694, was represented by Lieut. John Morgan.^^ Morgan 
was a resident of New London and had been a deputy for that 
town in two sessions of the court in 1690.^3 In May, 1693, 
Preston was also represented by Captain Benjamin Brewster, 
who was a resident of Norwich^'' and was a deputy for that 
town almost continuously from 1689-1697.^^ Another Nor- 

" Conn. Recs., II. 87, 524. " Conn. Recs., IV, 197. 359. 

'"Ibid., IV, 75, 92. "Ibid., II, 287, 525. 

>i Bronson, History of Waterbury, 140. " jbia., U. 126-286; III, 16-155. 

« Ibid., IV, 174, 197, 283, 319, 327, 343, 481, 498. 

"Adams, Middletown Upper Houses, 572-574. 

" Davis, History of Wallingford, 750-751. 

"Conn. Recs., IV, 91, 102, 130. '"Ibid.. IV, 69, 93. 

"Ibid., IV. 15, 23, 93. '^ Ibid., IV, 3-197. 



CONNECTICUT 85 

wich citizen who acted as deputy for Preston was John Tracy. 
This was in May, 1695. Tracy had had previous legislative 
experience as a deputy from his home town.*^ 

Rye, a town in the extreme western part of the colony, 
employed John Banks, whom we have met already, ex- 
tensively as its deputy. In fact, he is the only non-resident 
that ever represented the town. Between the years of 1670- 
1680 he was Rye's deputy in eight sessions of the general 
court, five of these being courts of elections.^^ Rye was in 
Connecticut until 1683, when by terms of an agreement be- 
tween the agents of the two colonies, regarding the boundary, 
a new line was run which placed Rye in New York. Upon 
petition of Rye and Bedford in 1696, they were received back 
into the colony of Connecticut, but by an order of king in 
Council of May 27, 1700, they were put back under the 
jurisdiction of New York.'*'* 

Stonington was represented in October Court of 1675 by 
John Gilbert of New Haven. We have already had an in- 
stance of his serving for Haddam.^^ In October Court of 1686, 
Stonington was represented by James Avery^" of New London. 
Avery was also a deputy for his home town in this court and 
served it in that capacity for many sessions between the 
years 1665-1689.^7 In May of 1692,^8 Isaac Wheeler of 
Fairfield*^ was deputy for Stonington. 

Stratford was represented by John Wells in September, 
1689, and October, 1693. In the meantime he had represented 
New Haven at a Special General Court held February 21, 
1693.^'^ The colony records give no clue as to his place of 
residence but the name was a common one in Stratford^S so 
that was probably his home. 

Waterbury had as one of its deputies in the general court 
of 1690 and again in 1693, Lieutenant John Staley. He was a 

« Conn. Recs., IV, 130, 138. 

"Ibid., II, 127, 147, 170, 180, 184, 318; III, 2, 48. 
"Ibid., II, 15; IV, 191-192,328. 

« Ibid., II, 265, 524. Jonathan Gilbert who represented Hartford in 1677 is a different 
Gilbert. He lived in Hartford (Recs. II, 518). 

"Ibid., Ill, 44. "Schenck, History of Fairfield, 274, e( seq. 

" Ibid., Ill, 2-253. »o Conn. Recs., IV, 2, 87, 104. 

«» Ibid., IV, 66. " See Orcutt, History of Stratford. 



86 CONNECTICUT 

prominent citizen of Farmington and represented Farmington 
in both of the above years as well as at many other times. In 
the records for the court of 1690 we find the name appearing 
once as Lieutenant Stanley and again as Captain Stanley, 
which might lead to the supposition that two different men 
were meant. But Stanley was not made a captain until 
May, 1691,^^ so evidently the different titles were employed 
because the same man appeared as deputy for two towns. 

A study of the data for Connecticut shows several contrasts 
to the situation in Massachusetts. 

First, non-residence representation in Connecticut was 
evidently increasing in the latter years of the seventeenth 
century. This was probably due to the fact that new inland 
towns were springing up. Nearly all the towns of the colony 
up to the year 1680 were either on or near navigable water. 

Secondly, on the whole there was less non-residence repre- 
sentation in Connecticut than in Massachusetts. The more 
compact colony, central location of the capital and the factor 
of navigable streams, already mentioned, all had a part, 
without doubt, in producing this result. 

The end of the century brought no change in the law or 
custom governing representation. As the century drew to its 
close, it witnessed, however, a radical change in the organiza- 
tion of the general court. On October 13, 1698, the court 
divided into two bodies called the Upper and the Lower 
House. ^^ Each was to have the rights and privileges common 
to bicarmeal legislatures of the time. 

To give all the examples of non-residence representation 
throughout the eighteenth century would be both tedious and 
unnecessary. Let it suf^ce to say that the practice was not 
changed. Connecticut was not inclined to change her political 
customs, in fact boasted of their stability; and this one 
particular custom lasted well on into the period of her state- 
hood. We have no Journal of the Proceedings of the General 
Assembly after 1780 until comparatively recent times; but 
a brief glance at that of the last few years before 1780 will still 

" Conn. Recs., IV, 23, 47, 92. " lud., IV, 267, 282. 



CONNECTICUT 87 

show the custom operative though evidently the towns did 
not often avail themselves of it. 

Ephraim Hubbell of New Fairfield represented his own 
town in January, 1769, and May, 1771; but Kent in May 
and October, 1769, and October, 1771.^^ At a still later date 
he served many sessions for each of the above places.^^ Josiah 
Phelps of Windsor^^ represented either his own town or 
Harwington at every session of the General Assembly from 
1769 to 1777,^^ while at the following sessions he represented 
them both at the same time: May, 1771, May, 1773, May, 
1775, and July, 1775.s« 

John Brooks of Stratford was the representative of his 
own town in May, 1773, but represented Haddam in October, 
1773, and many times thereafter.^^ 

Major Ebenezer Say of Sharon after serving his own town 
as representative for several sessions, acted in the same 
capacity for Stafford in 1777-1778.«o 

One Aaron Austin often represented New Hartford and was 
probably a resident of that place, although the records are not 
definite concerning it. But in the Assembly of May, 1778, he 
represented both New Hartford and Torrington.^^ 

The last instance in point of time that we can give is that of 
Increase Mosely, who represented both Woodbury and Wash- 
ington in the Assembly of May, 1779.^^ His place of residence 
cannot be definitely established. 

So much for the practice. Now let us see what the later 
Connecticut law said on the matter. We have already seen 
that under the charter of 1662 no check was placed on non- 
residence representation. The next legal reference to a 
qualification for deputies was in 1750, when the laws of the 
colony were revised. This reads: 

"And that the Freemen in every Town in this State, shall 
have Liberty to send one or two Deputies to every session of 

" Conn. Recs., XIII. 123, 170, 235, 408, 414. 512. " Ibid., XIV, 228. 

" Ibid., XIV and XV. " Ibid., XIV and XV. 

"Ibid., XIII, 413, 415; XIV, 71, 72; XV, 2, 4, 90, 92. 

"Ibid., XIV, 33, 72, 159, 213, 252, 353. 

•1 Public Records of the State of Conn.. I, 3, 62, 90, 408, 410, 469, 473, 522. 

M/6»d., II, 3. "Ibid., II, 250. 



88 CONNECTICUT 

the General Assembly. . . . And that no person shall be 
accepted a Deputy in the General Court, that is not known to 
be a Freeman of this state, and regularly chosen thereunto 
by the Freemen of that town for whom he serves. . . ." 

Exactly this same wording is kept in a publication of 
the laws of the colony and state of 1786, 1796, and 1808.^* 

Before this last publication of laws was made the agitation 
had started which was to give Connecticut a new constitution, 
and incidentally place a residential qualification on repre- 
sentatives in the state legislature. Hollister says that 

"as early as 1800 petitions began to be circulated 
through the state asking for the choice of members of the 
council and representatives in Congress by districts. ^^ The 
demand for a new constitution was fought out along party 
lines, the Democrats demanding it and the Federalists 
saying iet well enough alone'." 

So pressing were some of the wrongs, real or fancied, which 
existed under the old charter that the fight centered around 
them, and such questions as the one in which we are especially 
interested were overshadowed. 

The contest lasted twenty years, growing more and more 
bitter. This was partially due to the religious question being 
pushed to the front as the dissenting sects gradually increased 
in number. Their part in it is clear when we remember that 
Connecticut had an established church, for the support of 
which everyone was taxed unless he could show that he was 
a member of some other denomination. How the members 
of the established order viewed the new movement we can see 
from the pen of one of their ablest ministers and one, by the 
way, who afterwards saw that he had been on the wrong side 
and was willing to admit it. 

"The ambitious minority early began to make use of the 
minor sects on the grounds of invidious distinctions, thus mak- 
ing them restive. So the democracy, as it rose, included nearly 
all the minor sects, besides the Sabbath breakers, rum- 

«> Acts and Laws of Conn. (1786), p. 28 (1796), p. 126. The Public Statute Laws of the 
State of Conn. (1808), note 18, p. 203; note 21, p. 204. 
" Hollister, History of Conn.. II, 512. 



CONNECTICUT 89 

selling, tippling folks, infidels, and ruff-scuff generally, and 
made a dead set at us of the standing order." ^^ 

It is a little difficult for us at this distance to realize just 
how bitter such a conflict could become. The following will 
illustrate. On August 29, 1804, the Republicans held a con- 
vention in New Haven, the sole object of which was to de- 
mand a new constitution. Every justice of the peace who 
attended that convention was impeached and tried by the next 
general assembly .^^ 

In an attempt to dissipate the rising storm the assembly in 
1810 offered to divide among certain denominations a portion 
of the sum received from the United States for the state's 
Revolutionary expenses. But the Baptists and Methodists 
refused their share and the offer only added fuel to the flames. 

Year by year the Democrats gained headway until in 
1817 the victory came. A coalition was formed of all the dis- 
affected interests, and the party adopted Toleration as both 
its name and its motto. 

In the election of this year the Toleration party fought not 
only for a new constitution but also for the repeal of the 
"Stand Up Law", requiring open voting. They argued that 
publicity intimidated men from voting as they wished; for 
their creditors and those to whom they were under obligation 
knew how they voted. When this subject was under 
discussion in the October session of the assembly, a Mr. 
M'Clellan, speaking for a continuance of the old method, said 
in part: 

. . . It is said that men will not dare to stand up and 
let it be known who they vote for — and pray what is it if a 
freeman in Woodstock is to vote for a man in Fairfield County? 
Such is the independence of freemen, that not one would be 
unduly affected by declaring his choice." ^^ 

The nominee for governor of the Toleration party was 
Oliver Wolcott, a member of one of Connecticut's oldest 
families. He had, however, resided in Washington and New 

"Lyman Beecher, Autobiography, I, 342. 

" HoUister, II. 512. " Connecticut Courant, Nov. 4, 1817. 



90 CONNECTICUT 

York for a long time, and in the eyes of his political opponents 
this had had a bad effect on him. One said that by his ab- 
sence, 

". . . He had unfortunately lost all the peculiar habits 
and manners of a citizen of Connecticut, and forgotten the 
policy of his ancestors." ^^ 

Nor were all the attacks on Wolcott of this mild character. 
It was openly and persistently charged throughout the 
campaign that he had burned the War and Treasury building 
at Washington, while Secretary of the Treasury, in order to 
cover up his embezzlement of public money. 

The Federalist nominees were John Cotton Smith for 
governor and Jonathan IngersoU for lieutenant-governor. 
These two were also representatives of two illustrious Con- 
necticut families. The feeling of these men and their sup- 
porters cannot be better stated than by the following address 
to the Freemen of Connecticut, published in the Courant, 
March 4, 1817. 

"At an early period of this country our ancestors made for 
themselves a constitution and form of government which has 
continued, with little variation for almost two centuries, and 
has the advantage of experience, which gives stability of a 
government. The administration has been such as to secure 
to the people civil and religious liberty to as great an extent 
as has fallen to the lot of any portion of the human race. 
Provision for the distribution of justice, and the support of 
schools, literary and religious institutions, secured to all, their 
civil rights, the benefits of education, and the enjoyment of 
religion, with the most perfect freedom as to the rights of 
conscience. A government, from which its citizens have 
derived such important advantages, has deservedly possessed 
their confidence and support, and has thereby been enabled 
to exist unimpaired, even under revolutionary convulsions. 

"Members of the legislature and the officers of the govern- 
ment of this state, were, till of late years, uniformly elected 
by the freemen, uninfluenced by political parties. 

"Unfortunately a party has been organized in this state, 
who deny that we have any constitution, and claim that our 
government is a usurpation; who have been, and are now 

"Connecticut Courant, March 18, 1817. 



CONNECTICUT 91 

pursuing, with indefatigable and persevering industry, every 
measure in their power to undermine and overturn, or to 
effect a change in our state government. To attain their 
object . . . they have even pressed into their service the 
cause of reHgion, and have endeavored to excite discontent 
and dissatisfaction among particular denominations of 
Christians, and to impress them with a belief that they are 
treated with intolerance. 

"Connecticut has hitherto resisted all the attacks that 
have been made on her constitution and government. Her 
course has been honorable to her freemen, we feel an honest 
pride in a review of it. To enable us to preserve and hand 
down to posterity unimpaired, this fair inheritance, which 
we have derived from our forefathers, nothing is wanting but 
a faithful discharge of the important duties which devolve on 
every freeman. 

In the campaign speeches the statement was often made 
by the Federalists that 
. . . "Connecticut is the oldest government in Christendom," 

and the aim of their opponents was spoken of as "Over- 
turning the government of the state and "Revolution". 
Some even went so far as to suggest that divine vengeance 
would be meted out to innovators. 

"To attempt to disturb the generall order and peace of 
this little state is to war against the best tempered good that 
heaven bestows on man. . . . It is ingratitude. . . . 
It is impiety and if you persist and throw the state into the 
hands of irreligious and unprincipled men you will meet with 
the frowns of a righteous providence." ^^ 

Election date was April 17, 1817. Wolcott was elected 
and with him an assembly a majority of whom were favorable 
to a new constitution. The Federalist press at once began to 
picture the evils that would result. 

"Instead, then, of our present truly popular and republican 
system, we must expect one more aristocratic, and more nearly 
conformed to the monarchial plan — that is, a governor to 
form a distinct independent branch of the legislature, a senate, 
probably like many of the professed republican states, for 

"A letter signed Senex — Conn. Courant, August 19, 1817. 



92 CONNECTICUT 

three or four years the state divided into districts, and each 
district to become, of course, the theatre of demagogues." ^* 

In May, 1818, the legislature authorized the calling of a 
constitutional convention. It met August 20th, and soon 
completed its work. The people of the state then voted on 
the new constitution, October 5, 1818, giving it a majority of 
1,554 out of a total vote of 26,282. When the constitutional 
convention met a committee was appointed to draft a constitu- 
tion for the consideration of the convention. Art. Ill, Sec. 
Ill, of this draft reads: 

"The house of representatives shall consist of electors, 
residing in town from which they are elected." ^^ 

This change in custom a century and a half old in Con- 
necticut evidently aroused no opposition, for we read in the 
Journal : 

"The Third Article, relating to the Legislative Depart- 
ment, was then read and considered by sections, and after an 
amendment, varying the style only, was approved." ^- 

"Conn. Courant, September 2, 1817. 
" Journal, p. 79. 

" Ibid., p. 22. An attempt was made to district Senators also (Journal, p. 29) but 
was unsuccessful. They were elected at large until 1828. (Amendments, Art. II and III.) 



NEW HAVEN 

It should be kept in mind that for the first few years of its 
existence New Haven colony and town were one. It was 
founded by the little company of Puritans which followed 
Davenport and Eaton from England and politically was 
entirely independent of any colony already established. 

The first political meeting, of which we have record, held 
in the colony, was the famous gathering in Newman's barn, 
June 4, 1639. At this it was decided that the Bible was the 
sole and sufficient guide in affairs of government as well as in 
private matters. Davenport presented the query which was 
affirmed by open vote, 

"Whether the Scripturs doe holde forth a perfect rule for 
the direction and government of all men in all duties which 
they are to performe to God and men as well in the govern- 
ment of famylyes and commonwealths as in the matters of 
the church." ^ 

The political body here formed consisted only of church 
members. 

"All having spoken ... it was agreed upon . . . 
as on order whereunto every one that hereafter should be 
admitted here as planters should submitt and testefie the same 
by subscribeing their names to the order, namely, that church 
members only shall be free burgesses, and that they onely 
shall chuse magistrates and officers among themselves." ^ 

The governing body of the colony from the date of the 
signing of this agreement, June 4, 1639, to October 25, 1639, 
was seven magistrates or "seven pillars" of the church. 
The body of freemen assembled chose twelve men fit for this 
office and from this body of twelve seven were chosen by lot. 
The seven magistrates voluntarily resigned their places on 
October 25, 1639, and the whole body of freemen elected a 
magistrate and four deputies to manage the public affairs of 

» New Haven Records, I, 12. 
'Ibid., I, 15. 

93 



94 NEW HAVEN 

the plantation.^ It was also decided that these officers were 
to be elected yearly at a general court to be held in the last 
week of October.^ 

New Haven's only title to the land she occupied was by 
purchase from the Indians in 1638. In 1640 further pur- 
chase was made both on the mainland and on Long Island. 
It was on these later purchases that the towns of Stamford, 
Branford, and Southold were established. The first two by 
seceders from the church and town of Weathersfield ; the 
latter by a company of folk directly from England. In all 
these sales New Haven stipulated that the new towns were to 
look to her as the political center of the colony. Just what 
this political connection was to be seems quite indefinite, as 
can be seen from the agreement with Stamford which reads: 

". . Thirdly, that they join in all points with this 

plantation in the form of government here settled." ^ 

The formation of a united government, politically and 
territorially, was directly due to New Haven entering the New 
England Confederacy in 1643. She had had two commissioners 
present at the meeting at Boston at which the articles of union 
were drafted and signed. After their return a general court was 
convened at New Haven, October 27, 1643, in which for the 
first time the outlying towns were represented. The towns 
met on a basis of equality, Milford, Guilford, and Stamford 
each sending two deputies.^ The form of government adopted^ 
was similar to that existing in the neighboring colonies with 
the exception of the requirement of church membership for 
freemen. It provided for a general court of governor, deputy 
governor, magistrates, and two deputies for each town. 
All were to sit as one body. The court was to meet in two 

' New Haven Records, I, 20-21. The word plantation is commonly used in the Records 
in speaking of a town's local affairs. In contradistinction to this the word "jurisdiction" 
was used in referring to a strictly colonial matter involving the united interest of several 
towns. 

*Ibid., I, 21. 

» Atwater, History of the Colony of New Haven, 175. 

« It should be borne in mind that prior to this Milford and Guilford had been polit- 
ically independent of New Haven. Fairfield from its settlement belonged to Connecticut 
and thus kept New Haven from being a territorial unit. 

'New Haven Records. I, 112-115. 



NEW HAVEN 95 

annual sessions, April and October, the latter being the court 
of election. All freemen could vote for governor and magis- 
trates, and as in the other colonies there was a proxy arrange- 
ment by which those could vote who could not attend the 
court of election. 

The provision regarding deputies reads that there shall be 

"two Deputyes for every plantation in the Juris- 
diction, which Deputyes shall from time to time be chosen 
against the approach of any such Generall Court by the afore- 
said free burgesses. . . ." ^ 

While this certainly did not limit the freemen's choice 
to their fellow citizens yet the records show not a single case of 
non-residence representation.^ The reason for this probably 
lies in the accessibility of New Haven from each town either 
by land or water.^" 

New Haven shows a remarkable continuity of service on 
the part of its deputies. Every town kept practically an 
unbroken delegation in the general court from 1653 to 1662, 
when factions in certain towns declared their allegiance to 
Connecticut. The last general court of the colony met on 
December 13, 1664.^^ It was a primary as well as a representa- 
tive assembly. After long and careful consideration of the 
claims of the Duke of York on the west and of the dangers to 
all the colonies attending the visit of the royal commissioners 
the colony yielded to the demands of Connecticut and became 
a part of that government. 

8 New Haven Records, I, 14. 

• There are no records for the colony of New Haven from 1644 to 1653 except for a 
Court of Magistrates in 1646 and for a Court of Election in October, 1646. (New Haveri 
Records, II, IV). But from 1653 until New Haven's absorption by Connecticut they are 
complete. 

10 The towns represented in the later days of the colony were: New Haven, Guilford, 
Milford, Stamford, Branford and Southold. 

" New Haven Records, II, 549. 



NEW YORK 

During the Dutch rule in New York there was no legislature. 
Government centered in a director and council. The director's 
authority came from a mercantile company in the Nether- 
lands, while the council was a small body mainly composed of 
the director's appointees. Attempts on the part of the colo- 
nists to influence affairs in any way were always opposed. 

After the capture of the colony by the English the royal 
charter of 1664^ simply substituted an English duke as pro- 
prietor in place of a group of Dutch merchants. He was 
given authority 

. . . "to correct, punish, pardon, govern and rule all such 
the subjects of us Our Heirs and Successors who may from 
time to time adventure themselves into any of the parts or 
places aforesaid." 

He was also given authority 

. . . "to make, ordain and establish all manner of Orders, 
Laws directions, instructions, forms and Ceremonies of govern- 
ment and Magistracy fit and necessary for and Concerning 
theGovernmentof the territories and Islands aforesaid. . . 

There was reserved, however, to the colonists the right of 
appeal to the King in cases where they felt justice had not been 
received at the hand of the proprietor or his agents. 

One of the first steps taken by the royal commissioners 
after the surrender of the colony was to issue a proclama- 
tion promising the people protection, 

. . . "and all other privileges with his Majesty's subjects." ^ 

With the examples of Massachusetts, Connecticut, and 
Virginia before them we know what "privilege" was most 
highly prized by the colonists. Without doubt it was repre- 
sentation in the government. 

In addition to the proclamation this hope was strength- 

•Brodhead, II, 651. 

' Journal of the Legislative Council, I; Introduction, III. 

96 



NEW YORK 97 

ened by a letter written by Governor Nicholls late in August, 
1664, to Captain Young, of Long Island. In this the governor 
thanked those who had taken up arms in helping establish 
the English rule. Further than that he promised that 

"Deputys shall in convenient time and place, be sum- 
moned to propose and give their advise in all matters tending 
to ye peace and benefitt of Long Island." ^ 

That the governor had no authority to make such a promise 
is evident from reading his commission.^ But he kept his 
promise to a certain extent though quite evidently not as the 
people understood it. A few months later he addressed a 
circular to "The Inhabitants of Long Island"^ in which after 
recounting the trials of the Long Island towns he ordered: 

"That upon the Last day of this present ffebruary at 
Hempsteed upon Long Island, shall be held a Generall meet- 
ing, which is to consist of Deputyes chosen by the Major part 
of the freemen onely. . . ." 

Further reading makes it quite evident that what the governor 
had in mind in calling this assembly was to settle the numerous 
boundary disputes which existed between many of the towns. 
In response to this proclamation, two representatives from 
each of seventeen towns^ met the governor at Hempstead on 
March 1, 1665. The only record we have of the business 
transacted is an address to the Duke of York^ and the orders 
issued in connection with two suits over boundaries. We have 
noticed that only Long Island towns were represented at 
the above assembly. For that and other reasons which are 
obvious the gathering could not be dignified by the name 
legislative assembly. 

II; Time went by and Nicholls made no move to call another 
assembly. There were murmurings, especially on Long 
Island, which had the largest proportion of English inhab- 

' Journal of the Legislative Council, I ; Introduction, IV. 
' Brodhead, II, 653. 

' Journal of the Legislative Council, I ; Introduction, IV. 

• The names of the towns and the men representing them may be found on page five 
of Introduction to the Journal of the Legislative Council, Vol. I. 
' N. Y. Col. Docs., Ill, 91. 
7 



98 NEW YORK 

itants. But matters did not reach an acute stage until Nicholls 
was leaving the colony, having been replaced by Lovelace. 
Then in November, 1669, petitions from eight towns were 
presented to the Court of Assizes, praying for the redress of 
several grievances, the principal one^ being that an assembly 
had not been called from time to time as promised by Governor 
Nicolls. The reply they received was, 

"In answer to ye 1st head wherein they desire to have 
Deputyes to be Joyned with ye Governor and Council. . . . 
It doth not appeare that Col. Nicholls made any such prom- 
ise. . . ." ^ 

Nearly a year passed before the towns had another 
opportunity of making a protest. This opportunity grew out 
of an attempt on the part of the governor to levy a tax to 
repair the palisade surrounding the fort at New York. Many 
of the Long Island towns refused to contribute and, while their 
stated reasons differ, the principle back of the refusal was the 
same in every case. For instance, one town agreed to contribute 

. . . "if they might have the privilege that other his Ma- 
jesty's subjects in these parts have and do enjoy." 

Another stated its refusal 

. . . "because they were deprived of the libertys of English- 
men." 

It is interesting to note that these remonstrances were publicly 
burned before the city hall in New York. 

There now followed the period of reoccupation by the 
Dutch which lasted until 1674. The return of English rule 
was marked by the appointment of Edmund Andros as 
governor. If there was much agitation during his term of 
office for an assembly the only hint we have of it is in two 
letters from the Duke of York to the governor. In 1675 he 
wrote : 

. . . "touching Generall Assemblys which ye People there 
seeme desirous of in imitacon of their neighbor colonies, I 

' For a summary of this whole period see the Historical Introduction to the Journal 
of the Legislative Council. 

' Journal of the Legislative Council, Introduction, VI, VII. 



NEW YORK 99 

think you have done well to discourage any Mocon of yt 
kind";!" 

and again in the following year, 

"Such assemblyes I cannot but suspect would be of 
dangerous consequence, nothing being more knowne than the 
aptness of such bodyes to assume to themselves many privil- 
edges which prove destructive to, or very often disturbe, the 
peace of ye governemnt, wherein they are allowed. Neither 
do I see any use of them, etc." ^^ 

The opportunity for a final and effective protest on the 
lack of an assembly in the colony grew out of an oversight 
on the part of Governor Andros. Orders for the collection of 
the duke's revenues had been issued regularly each three years. 
One was issued in 1677 and expired by its own limitation in 
1680. Almost coincident with the expiration of the order of 
1677, Andros sailed for England to answer certain charges 
against his administration. He neglected to mention the 
customs duties in his final order to Brockholls, who was to be 
in authority during the governor's absence, but did order that 
all things should remain "as then settled". Quickly grasping 
their opportunity the merchants early in the spring of 1681 
refused to pay the custom dues on incoming cargoes. Then 
followed a period of suits and counter-suits on the part of 
Dyer, the collector, against various merchants and of the 
merchants against Dyer. But the point to keep in mind is 
that during this year the duke was getting practically no 
revenue from his colony. The Long Island towns taking ad- 
vantage of the disturbed condition began to assert their rights 
again and in some cases local authorities refused to carry out 
the orders of Brockholls and the council. ^^ 

Of course full reports of conditions were made by Brock- 
holls. In one of his letters he said that the government 

"is much disliked by the People who generally cry out for an 
Assembly. . . ." ^^ 

»»N. Y. Col. Docs., Ill, 230. 

»Ibid., Ill, 235. 

" For a full acount of the above see Osgood, II, 162-164. 

" Journal of the Legislative Council, I, IX. 



100 NEW YORK 

The duke now yielded to the demand of his colonists but 
there is no doubt that his impelling motive was an economic 
one.^* On March 28, 1682, he wrote to Brockholls as follows: 

". . . I send this to tell you that I intend to establish 
such a forme of government at New Yorke as shall have all 
ye advantages and priviledges to ye inhabitants and traders 
there, which His Mats other plantacons in America doe 
enjoy, particularly in ye choosing of an Assembly, and in 
all other things as nere as may be agreeable to ye laws of 
England." ^^ 

Colonel Thomas Dongan was now appointed governor by 
the duke and among his duties was the carrying out of the 
promise of an assembly. Considerable space was given in his 
Instructions^^ to this matter. As soon as possible after his 
arrival he was to issue a summons calling an election of repre- 
sentatives. The assembly was to consist of not more than 
eighteen members. They were to have freedom of debate but 
all measures passed were to be subject to the assent and 
dissent of the governor. The proprietor was also to have a 
negative on all laws. Regarding revenue all laws on the sub- 
ject should plainly state that the money raised was for the 
express use of the proprietor, and no bill decreasing the 
revenue could be passed without the prior consent of the 
proprietor. 

Late in August, 1683, Governor Dongan issued writs for 
the election of representatives to the assembly." The date 
set for its meeting was October 17 and the place of meeting 
was to be Fort James in New York City. The assembly thus 
chosen met at the appointed time and place. Its journal 
having been lost the names of most of the men comprising it 
are not known. This assembly sat for three weeks and 
passed fourteen acts, only one of which affects this study. 

This was an act entitled 



»* Journal of the Legislative Council, I, XVI. For quite a different view, however, 
see Brodhead, II, 373-374. 

» N. Y. Col. Docs., Ill, 317. 

»J6i<i., 111,331-334. 

1' Journal of the Legislative Council, I, XI. This reference also contains the names 
of towns or districts entitled to representation and the number of representatives assigned 
to each. 



NEW YORK 101 

"The Charter of Liberties and Priviledges, granted by his 
Royal Highness to the Inhabitants of New Yorke and its 
dependencies." ^^ 

This stated that the Charter was enacted 

"by the Governor, Councell, and Representatives, 
now in Generall Assembly met." 

And further, 

. . . "That the Supreme Legislative authority, under his 
Majesty and Royal Highness James Duke of Yorke, Albany, 
etc.. Lord Proprietor of the said Province, shall forever bee 
and reside in a Governour, Councell, and The People, mett 
in a Generall Assembly." 

Another provision was, 

. . . "That, according to the usage, custome and practice 
of the Realm of England, a sessions of a Generall Assembly be 
held in this Province, once in three years at leaste." 

Representatives were apportioned to the counties^^ and 
it was provided that 

. . . "every freeholder within this Province, and freeman 
in any corporation, shall have his free choice and vote in the 
electing of the Representatives, without any manner of con- 
straint or imposition, and that in all elections, the majority 
of voices shall carry it." 

This charter along with the other laws passed by the first 
assembly were finally approved by the proprietor in England, 
but their return was delayed, and before they were sent the 
death of Charles the Second changed the whole situation, 
automatically changing New York from a proprietary to a 
royal province. Within a month of the duke's accession to 
the throne as James the Second, the laws passed by the New 
York Assembly, or at least the charter above referred to, 
came before the Committee of Trade and Plantations for 
examination. A report was made on it by a meeting at which 
it is said James presided in person. The section providing 

"Brodhead, II, 383; Ibid, note p. 382; N. Y. Col. Docs., Ill, Note p. 355; N. V. 
Col. Laws (1664-1776), I. 111. 

" The names of these with their boundaries were given in another section of the act. 



102 NEW YORK 

. . . "That the Supreme Authority shall remain in the 
Governour, Councell and the People mett in a Generall 
Assembly" 

was objected to on the ground that, 

. . . "The words The People met in a General Assembly 
are not used in any other Constitution in America; but only 
the words General Assembly." ^^ 

Several other sections were objected to also and as a 
result of the hearing the charter was not confirmed. Two 
days later James wrote Dongan^^ calling his attention to the 
fact that the death of Charles had ended the proprietorship 
and asking him to tell the people that the new king had com- 
mitted 

. . . "toOur said Privy Council the care of Our said Province 
with the consideration of the several bills and addresses lately 
presented unto us from Our assembly there. They may 
shortly expect such a gracious and suitable return by the 
settlement of fitting privileges and confirmation of their 
rights as shall bee found most expedient for our service and 
the welfare of Our said Province." 

In the meantime the assembly met in its second session in 
October, 1684. Thirty-one acts were passed and assented to 
by the governor, none of which affects this study. Before the 
time of the third session, in the fall of 1685, news of the king's 
death reached the colony and the question was at once raised 
whether the assembly was not dissolved in consequence. 
Upon the advice of the council, Dongan dissolved the as- 
sembly and ordered the election of a new one.^^ 

The assembly elected in response to this summons met in 
November, 1685. Only six acts which received the governor's 
approval were passed. In adjourning, the assembly set as the 
date of its second session September 25, 1686, but as events 
were to prove, the first session was the only session of a New 
York assembly during the reign of James the Second. As the 
time drew near for the second session of the second assembly, 

2» N. Y. Col. Docs., Ill, 357. == Journal of the Legislative Council, I, XIV. 

=>76»(/., Ill, 360. 



NEW YORK 103 

no official order had come from England forbidding its 
meeting. Nevertheless, on September 4, 1686, Governor 
Dongan prorogued it until March 25th following.^^ The 
governor must have had secret advice of the decision of the 
king for just ten days after he prorogued the assembly he re- 
ceived his commission as royal governor of the province ;^^ 
a commission which expressly empowered him to exercise full 
legislative and executive power in conjunction with the council. 
His Instructions, which accompanied his commission, 
contained this paragraph: 

"And whereas wee have been presented, with a Bill or 
Charter passed in ye late Assembly of New York, containing 
several ffranchises, privileges and Immunitys mentioned to be 
granted to the Inhabitants of our said province, You are to 
Declare Our Will and pleasure that ye said Bill or Charter of 
Franchises bee forthwith repealed and disallowed, as ye same 
is hereby Repealed, determined and made void." " 

When one keeps in mind the movement on at this time to 
combine all the New England colonies into one government 
and to vacate the charters of all those colonies which would 
not voluntarily surrender them, the abolishing of the assembly 
in New York simply becomes part of a movement to substitute 
in America government by royal authority, without regard to 
the desires of the governed for the limited freedom which most 
of the colonies had enjoyed up to this time. 

We can do no better in closing this study of the preliminary 
steps in the development of an assembly in New York than 
to quote Osgood : 

"New York consisted as yet of a number of loosely con- 
nected sections. The two components of its population — 
Dutch and English — had not yet grown together into a 
political whole. They spoke different languages. Many 
differing forms of religious faith existed within the province. 
The larger part of its people had long been accustomed to 
autocratic rule. The charter guaranteed nothing different. 
Commercial interests predominated in the city, where, if 
anywhere, continued and successful opposition to autocratic 

"Journal of the Legislative Council, I, XV. 

"N. Y. Col. Docs., Ill, 378. "Ibid., Ill, 370. 



104 NEW YORK 

government could be maintained. New York, moreover, 
formed the center and starting point of a great imperialistic 
scheme of colonial union, and it was without power to resist. 
For these reasons the permanent establishment of repre- 
sentative institutions in that province was postponed until it 
could be achieved by a government in England which favored 
their maintenance in all the colonies." ^^ 

News of the landing of William of Orange in England 
reached New York in February, 1689. Lieutenant Governor 
Nicholson tried to keep it secret at the same time attempting 
to get into touch with Governor Andros who was in Maine. 
But the news through other sources reached Jacob Leisler, 
a well-to-do merchant of New York City. For personal 
reasons Leisler was not on good terms with several of the 
leading councilors, yet the peace of the colony does not seem 
to have been disturbed until news reached New York of the 
uprising in Boston and the later imprisonment of Andros. 
This was the signal for Leisler and his followers to undertake 
a similar movement in New York. The details of the so- 
called Leisler Rebellion do not concern this study, but on the 
other hand, the fundamental aim of the revolt does concern 
it intimately. Osgood says that the Leisler rebellion has its 
place in a series of events — mainly protests — which began 
with Kieft's Board of Nineteen, and which finally resulted in 
the permanent grant of a legislature to New York in 169L" 

Lieutenant Governor Nicholson left New York for Eng- 
land in June, 1689, and for nearly two years there was no 
representative of the crown in the colony except the members 
of the council whom Leisler refused to recongize. After a 
year of turmoil and because of need of funds to carry on the 
Indian war which had now reached an acute stage, Leisler 
called an assembly in April, 1690. The only act of importance 
was one providing for the raising of revenue. This assembly 
met again in September. There is no way of telling whether 
the representatives composing this assembly were all residents 
of the counties they represented. 

"Osgood, II. 168. 

" For a full statement of the various elements entering into the Leisler Rebellion, 
see Osgood, III, Chap. XV. 



NEW YORK 105 

While New York was passing through this period of turmoil 
a new governor had been appointed (1689), but he did not 
reach the colony until 1691. On March 19, of that year, 
Governor Sloughter arrived and promptly published his com- 
mission. This commission^* ordered the early calling of an 
assembly. Writs were issued for an assembly to meet April 
ninth. Under this commission all laws passed by the assembly 
were subject to a double veto, of the governor and of the 
crown. It should be remembered, however, that laws re- 
ceiving the governor's approval were considered in force in 
the colony from the time of such approval until word came of 
the crown's veto. The assembly met at the stated time, and 
on May 13th, passed an act entitled: 

. . . "An Act declaring what are the Rights and Priviledges 
of their Majesties Subjects inhabiting within their Province 
of New York." ^9 

This act closely followed the so-called charter passed 
by the assembly of 1683. The opening paragraph thanked 
the crown for 

. . . "restoring to them the undoubted Rights and Privil- 
edges of Englishmen." 

The act provided for a session of the assembly each 
year; that all freemen of any corporation and every freeholder 
of the province should have a vote in the choice of repre- 
sentatives. The term freeholder was defined as meaning one 
who should have 
. . . "forty shillings per year in freehold." 

A further provision was that the assembly was to be 
the 

. . . "sole Judges of the Qualifications of their own mem- 
bers." 

But no residential requirement appears in the act.^*^ 

«« N. Y. Col. Docs., Ill, 624. 

" Colonial Laws of N. Y., I, 246. 

»» Since this is the first of the unbroken line of New York Assemblies the apportion- 
ment of representatives may be of interest. 

City and County of New York 4 

Suffolk County 2 

Queens County 2 



106 NEW YORK 

Governor Sloughter was succeeded the next year by 
Fletcher, whose administration covered the years 1692-1698. 
During this period there was a revolt in the minds of many 
men over the penalty inflicted on Leisler and Milborne. The 
small property-holders, the propertyless, and the rural people 
came to see in Leisler, though now dead, a champion of those 
principles which were at stake in their contests with the 
wealthy merchants of New York and the great landholding 
gentry. As a result the elections of the period covered by 
Fletcher's and Bellomont's administrations and extending 
even into Cornbury's (1692-1702), were bitterly contested 
between the Leislerians and the anti-Leislerians or Jacobites, 
as their political enemies called them. Fletcher sided with the 
aristocratic party and there is plenty of proof that during his 
administration the assembly was dominated and intimidated 
and elections interfered with.^^ 

Richard, Earl of Bellomont, had been appointed governor 
in 1695, but did not arrive in the province until early in 1698. 
He at once let it be known that he thought colonial affairs 
were in bad shape and that his opinion of his predecessors was 
not a very good one. This, of course, gave hope to the 
Leislerian faction and won for Bellomont the opposition of 
the merchants and propertyholding class. It is interesting to 
note the differences in the charges against Fletcher and Bello- 
mont by their respective enemies. The Jacobite side of the 
controversy is set forth in full in Accusations vs. Bellomont, 
which can be found in New York Colonial Documents, IV; 
620-623. The gist of the whole accusation seems to be the 
following, however: 

"That soon after his Lordship issued out writts for chusing 
a new Assembly, and the Election was appointed to be upon 
the same day in all places except the two most remote Counties 

Kings County 2 

Richmond County 2 

Westchester County 2 

Ulster County 2 

City and County of Albany 2 

Duke's County 2 

Colony of Rensselaerswyck 1 

>• See Letter of Peter De La Noy. June, 1695. N. Y. Col. Docs., IV. 221, 322, 323. 
507. 511. 



NEW YORK 107 

whereby the best freeholders who had estates in several 
Counties, were deprived of giving their votes at several 
elections." 

The question here raised was one which was a source of con- 
tention in New York politics for many years. 

Attention has been called to the political situation in the 
province at the time of the coming of Lord Bellomont in order 
to provide a background for a proper understanding of some of 
the acts passed under his administration and that of his 
successor. While the records are not definite on the subject 
the assembly of 1698 was probably chosen after Belloment's 
arrival and under writs issued by him. No act of this as- 
sembly concerns this study. But on May 19th, Bellomont 
addressed the council and assembly and among other things 
called their attention to the abuses which had developed in the 
election of members and promised his approval of a law to 
remedy them.^^ 

A new assembly was chosen in 1699 and it proved to be a 
most bitterly contested election. William Nicoll was the 
Jacobite leader and he rode all over the state urging the 
people that now was the time to withhold the royal revenue. 
The result of the election, however, gave the Leislerians 
sixteen members out of twenty-one. Acting either on the 
governor's suggestion or because of their own desire to 
remedy conditions the assembly passed an act entitled: 

"A bill for ye Regulateing Elections of Representatives in 
General Assembly in each Respective Citty and County within 
this province. 

". . . Bee it Enacted by his Excel ye Gov'r and Councill 
and Representatives Convened in Generall Assembly And 
it is hereby Enacted by ye Authority of ye Same yt ye Repre- 
sentatives of ye Cittyes and Countyes to be Chosen within 
this province to come to ye Assembly of our Lord ye King in 
this province hereafter to be holden shall be chosen in every 
Citty and County and manner of this province who have 
right to Choose by people dwelling and resident in ye Same 
Cittyes Countyes and mannors whereof every one of them 
shall have Land or Tenem'ents Improved to ye value of 

"Council Journal, I, 112. 



108 NEW YORK 

fforty pounds in free hold free from all Incumbrances and 
have possessed ye Same three months before ye test of ye said 
writt and they which Shall be Chosen shall be Dwelling and 
Resident w'thin ye Cittys Countys and Mannors. . . ." ^* 

We shall find later that at their first opportunity the 
Jacobite faction repealed the above but it seems quite clear 
that the reason of their opposition had nothing primarily to 
do with the question of a residential qualification except as 
that question was inextricably mixed with the one of a 
residential qualification for electors. The reasons why the 
wealthy, propertyholding class objected to the latter re- 
striction are quite evident in the light of the sentence quoted 
above in their accusation against Lord Bellomont. 

The law of 1699 evidently did not end all irregularities 
connected with elections, for in October, 1701, the assembly 
passed an act the title of which read 

"An Act for the more regular preceedings in the Elections 
of Representatives for the Severall Cities and Counties within 
this Province." ^'^ 

This law does not mention qualifications for representatives 
but deals with denying the suffrage to Catholics; making 
more explicit the definition of freehold; and providing for 
what might be called technical non-residence voting, inasmuch 
as for seven years 

. . "the freeholders of Dutchess County shall and are 
hereby Impowered to give their votes for Representatives in 
the County of Ulster, as if they actually lived in said County." 

On May 1, 1702, this same assembly, two days before its 
dissolution, passed another election law increasing the total 
number of representatives; increasing the representation of 
some towns; giving the right of representation to several 
new counties; and providing for temporary non-residence 
representation for certain specified places. This portion of 
the act reads: 



" N. Y. Col. Laws, I, 405. In the Journal of the Assembly the proceedings from 
April 25, 1699, to October 29, 1700, are missing, so we do not know the arguments advanced 
for and against this measure. 

«• N. Y. Col. Laws, I, 452. 



NEW YORK 109 

". . . And be it further enacted by the authority afore- 
said that the Town of Schnectady, Nistigionne and half Moon, 
and the Town of Kinderhook and all that part of the Colony 
of Renslaerwyck shall and may Elect any Sufficient ffreeholder 
of the City and County of Albany^^ to represent either of the 
said Towns if they so think fit any Law, usage or Custom to 
the Contrary hereof in any wayes notwithstanding."^^ 

Lord Bellomont died in March, 1701, and at the time of his 
death John Nanfan, the lieutenant governor, was in Barbadoes. 
The anti-Leislerians at once began their campaign and there 
was great turmoil in the province from March to June. The 
assembly chosen was Leislerian however. 

Late in 1701 news of Lord Cornbury's appointment as 
governor reached the province and caused great joy to the 
Jacobite faction. Nicholas Bayard became especially violent 
in seeking to upset the work of Bellomont, and as a result was 
condemned to death under an act which he had been in- 
strumental in passing ten years before to expedite Leisler's 
conviction. The sentence against Bayard was never carried 
out, as he was allowed an appeal to England. In May Lord 
Cornbury arrived and promptly aligned himself with the 
aristocratic party. The assembly which was now elected 
under writs of the new governor was strongly anti-Leislerian.^^ 
On November 27th, it passed a law specifically repealing the 
election law of 1699. This act also contained a provision 
repealing all laws 

. . . "made, pronounced, published or Promulgated . . . 
since the first day of August, 1701." ^^ 

To fully and thoroughly complete the task one provision was : 

"And that the Memory of these pretended Act and Acts 
of General Assembly may be wholly Obliterated, Deleted and 
buried in perpetual Oblivion." ^^ 

The Election Act of 1699 was approved by the King, Septem- 

" The places mentioned were all in Albany County. 

" N. Y. Col. Laws, I, 479. 

" The change in the political complexion of an assembly to correspond with that of 
the governor raises grave doubts concerning the fairness of the elections. The sheriffs 
were a great power and the New York records are full of instances of sheriffs being charged 
with corrupt practices in connection with elections. 

" N. Y. Col. Laws., I, 524. »• Ibid., I, 524. 



no NEW YORK 

ber 5, 1700,^° but the one of 1702 was disallowed by Queen 
Anne in June, 1708,^^ leaving the former one in force. 

As the question of residence as a qualification for repre- 
sentation does not appear in any act of the assembly again 
until 1769, let us see what was the practice of the people in 
this regard. Prior to legislation on the subject the only in- 
stance of non-residence representation discovered by a careful 
checking of the lists was in the very assembly which first 
passed a law touching the matter. Abraham Governeur, a 
son-in-law of Leisler and a resident of New York City, repre- 
sented Orange and Kings counties in the assembly of 1699, 
but appears as a representative for New York in the assemblies 
of 1701 and 1702.^2 

When the assembly of August, 1701, met the seats of two 
members were challenged on the ground of non-residence 
under the law of 1699. William Nicoll had been returned for 
Suffolk County but was dismissed under the above act. None 
of the colonial records give us exact data as to Nicholl's 
residence. Everything points to New York City however. 
Nevertheless, he later represented Suffolk County continuously 
from 1702 to 1710,*^ and if he were not a resident the fact that 
his seat was not challenged after 1701 can only be accounted 
for by the fact that during that time his faction controlled 
the assembly. 

The other member whose seat was challenged under the 
act of 1699 was Dirk Wessels, who had been returned by City 
and County of Albany. He was a merchant of Albany but 
lived part of each year on his farm in Livingston Manor .^^ 
He had laready represented Albany continuously from 1691 
to 1695,^^ and was an alderman there in 1700.^^ He must have 
had some doubt, however, whether he could qualify under 
the act of 1699, for during the investigation of his case the 
following curious document was read into the record : 

"N. Y. Col. Docs., V, 25. 

<' N. y. Col. Laws, I, 523. The Queen took this action on the recommendation of the 
Lords of Trade. 

" Assembly Journal, I, 93, 139. 

"Ibid., I, 144, 195, 219, 239, 271. "Assembly Journal, I, 1, 31, 35, 54. 

« Schuyler, II, 331. " N. Y. Col. Docs., IV, 727. 



NEW YORK 111 

"Know all Men by these Presents, That I Dirck Wessels, 
of the City of Albany, of the Province of New York, am 
holden and firmly bound, unto Jonathan Broadhurst, Esq.; 
High Sheriff of the City and County of Albany aforesaid; 
in the penal sum of One Hundred Pounds, Lawful Money of 
this Province, to be paid to the said Jonathan Broadhurst, 
his Heirs, Executors, Administrators or Assigns; for the 
which Payment, well and truly to be made, I do bind myself, 
my Heirs . . . firmly by these Presents, sealed with my 
Seal, dated this 14th Day of July, in the 13th Year of his 
Majesty's Reign, Anno Domini, 1701. 

"The Condition of this Obligation is such. That whereas, 
'tis required by a late Act of Assembly of this Province, en- 
titled, An Act for the regulating of Elections, etc.. That all 
Persons chosen to serve as Representatives, in the Assembly 
of this Province, shall be dwelling and resident within the 
same Cities, Counties and Manors, for which they are 
chosen; and whereas. Major Dirck Wessels above named, 
expects to be put up for a Candidate, in the Election of 
Representatives for the City and County of Albany; now if 
the said Dirck Wessels, his Heirs . . . , do idemnify the 
said Jonathan Broadhurst, his Heirs . . . , from all Pain 
and Forfeiture, which he may any ways incur by returning the 
said Dirck Wessels, (if he be chosen) a Representative as 
aforesaid, in Respect of his the said Dirck Wessels, being a 
Non-Resident as aforesaid; then this present Obligation be 
void and of none Effect, otherwise to remain in full Force and 
Virtue. 

Sealed and Delivered in the Dirck Wessels, (Seal). 

Presence of *'' 

Jacob Turck, 
S. Clowes. 

The sheriff was called before the assembly to produce the poll 
book but he was not reprimanded for entering into such a 
bargain with a candidate. The intensity of partisan feeling 
in the assembly of 1701 is shown by the fact that when 
Nicoll and Wessels were ordered to withdraw on August 20, 
eight other members went with them. The eight, not having^ 
returned by the twenty-sixth, were expelled and writs issued 
for elections to fill their places.^^ 

"Assembly Journal, I, 116. "Ibid., I, 116, 118. 



112 NEW YORK 

The next instance we find of non-residence representation 
was in 1722 when Adolphus Philipse, a resident and merchant 
of New York City, was the representative for Westchester 
County, where he had large holdings. His seat was not 
challenged. For several years following the above date he 
represented his own city.^^ 

On November 10, 1743, John Yelverton, of Orange 
County, presented a petition^*^ calling the attention of the 
assembly to the election law of 1699. The petition in part 
follows : 

"That contrary to the Intent and Meaning of the aforesaid 
Act, Theodorus Snediker, Esq.; High Sheriff of Orange 
County, hath lately returned Mr. Gabriel Ludlow, as duly 
elected a Representative to serve in the present General 
Assembly, for the said County of Orange, although the said 
Gabriel Ludlow, then was, and still is dwelling and resident 
in the city of New York, and not in the County of Orange, and 
refused to return your Petitioner as duly elected, although he 
well knew that your Petitioner . . . had the greatest 
number of votes of any Persons within the same County." 

Despite the above Ludlow was declared duly elected and 
was seated. Immediately thereafter. Colonel Lewis Morris, 
who was later to figure in a similar case, moved for leave to 
bring in a bill regulating the election of representatives. 
Leave was granted but the final action on it shown by the 
records was the postponement of its consideration until the 
next assembly. ^^ It does not seem to have been presented at 
that time, so we do not know what Morris had in mind except 
as it is revealed in a statement of his in connection with a 
similar case two years later. 

In 1745 Edward Holland, of New York City, petitioned the 
assembly against the seating of Captain Arent Brandt, from 
Schenectady, claiming the seat himself.^^ The assembly 
held long hearings on this petition. Counsel for Brandt 
argued that as Holland was not an inhabitant (note that he 

*• N. Y. Col. Docs., VI, 56. •' Ibid., II, 4, 7. 

" Assembly Journal, II, 3. "Ibid., II, 65. 



NEW YORK 113 

did not use the word resident) of Schenectady, he was not 
qualified to represent it. One member urged the postpone- 
ment of any decision on the question till the next session on 
the ground that matters involved were of such moment that the 

. . . "Consequences, greatly endanger the Liberties and 
Properties of our Constituents, and even affect our very 
Constitution. . . '' ^^ 

Colonel Lewis Morris moved that the matter be placed in 
the hands of judges of the Supreme Court on the ground that 

". . . A mistaken Resolution of this House, may en- 
danger every Thing that is dear and valuable, and even 
shake the very Foundation of that Right, by which we sit 
here." ^* 

The Morris motion was defeated and the assembly's decision 
was that under the laws of the colony Holland was not en- 
titled to represent Schenectady. The fact that Morris should 
move that a decision be obtained from the highest provincial 
court on a given situation apparently plainly covered by 
colonial statute shows clearly that a certain group of men in 
the province felt that there was a distinction between legal 
and actual residence. 

The next election law and also the next contested election 
which hinged on the question of residence both come in the 
year 1769; but before we take them up let us look just for a 
moment at some phases of legislative development during the 
first seventy years of the eighteenth century. It had been one 
long period of contests between the assembly and the royal 
governors. While the assembly was often torn by factions yet 
on matters of vital importance they would usually unite 
against a governor. The chief items of contention were, of 
course, revenue bills which the assembly asserted time and 
again should be granted annually instead of for a long period 
of time. 



"Assembly Journal, II, 78. '* Ibid., II, 79. 

8 



114 NEW YORK 

One of the chief complaints of the assembly was the fre- 
quent prorogations and dissolutions by the governor when he 
had a refractory assembly, and on the other hand of the length 
of time he would keep an assembly, which had proved pliable 
and friendly, in existence. For example, the assembly of 
October, 1715, was dissolved August 10, 1726, having been in 
existence eleven years. The one of July, 1728, lasted nine 
years, being dissolved in 1737. 

Attempts were made from time to time to remedy this 
condition. A Triennial Act was considered in 1728, but as 
the council opposed it, it was dropped.^^ A similar act was 
passed in 1737, which this time received the approval of the 
counciF^ but was adversely reported by the Board of Trade 
and vetoed by the Crown.^'' In connection with the latter 
Lieutenant-Governor Clarke wrote the Board of Trade 
stating that the chief argument for such a bill was that the 
province was shunned by immigrants in favor of the corporate 
colonies and proprietory provinces where the assemblies were 
frequently chosen.^^ Finally, in 1743 a Septennial Act^^ 
was passed which received royal approval and which remained 
in force well into the nineteenth century. 

The Election Act of 1769 evidently grew out of two con- 
tested elections of that year or more probably out of one in 
Westchester where the election had been decided by non- 
resident electors. On April 12, 1769, John Thomas, of 
Westchester, presented the following motion: 

"I find by an act passed by the general assembly of the 
Colony of New York the 8th of May, 1699, it is among other 
things enacted, for regulating elections in the colony, that no 
non-resident should have a right to a seat in the House of the 
Assembly. I find that Mr. Philip Livingston is returned for 
the manor of Livingston, in the county of Albany; I move for 
the aforesaid reasons, his not being a resident, according to 
the Act of the Assembly, that he may be dismissed from his 
attendance of this house." ^^ 



» N. Y. Col. Docs., V, 874. " N. Y. Col. Docs., VI, 136. 

"Council Journal, I, 705. "Ibid. VI, 112-113. 

"Assembly Journal, II, 10; Council Journal, II, 2026. 
"Assembly Journal (1766-1776), 24. 



NEW YORK 115 

It may be of interest to note the names of those voting to 
dismiss the above motion: Ten Broeck, Morris, Ten Eyck, 
Schuyler, Mynderse, Clinton, De Witt, Van Cortland . . . 
almost the solid New York and Albany delegations and every 
one great land owners. 

Consideration of the motion was postponed from time to 
time but was finally taken up on May twelfth, on which date 
a long petition was presented by the freeholders of Livingston. 
As this covers the whole question at issue from all its various 
angles, the best of any document appearing in the provincial 
papers of New York, it is given in full : 

"The petition of the subscribers, being freeholders of the 
Manor of Livingston, in the County of Albany, 

Humbly Sheweth, 
That your petitioners, in virtue of His Majesty's writ for 
electing a representative for representing the said manor, 
in the then next, and now present, General Assembly, lately 
directed to the returning officer from the said manor, did 
unanimously elect Philip Livingston, Esq., to serve in this 
present Assembly, as their representative, who was accordingly 
returned, and admitted to his seat in this honorable house. 

"That your petitioners have since been informed that a 
motion was made . . . for dismissing the said Philip 
Livingston ... as not qualified according to an Act of 
Assembly . . . said to have passed on the eighth of May, 
1769. ... 

"That your petitioners knew of no other act of this colony, 
respecting the residence of persons to be elected to serve in 
General Assembly, than a certain act passed the eighth day 
of May, in the year 1699 . . . which your petitioners 
humbly conceive neither ought, nor was, intended to deprive 
them of their right to be represented in this honorable house, 
by any representative, otherwise legally qualified, though not 
actually residing in the said manor, for the following reasons : 

"First; Because the words in the said act relative to the 
residence of the persons to be chosen, are the same with those 
in the act of Parliament, passed in the eighth year of King 
Henry the Sixth, and your petitioners beg leave to observe, 
that, notwithstanding the said act of parliament, it is notorious 
that the electors in the several counties, cities and borough in 
England have constantly chosen, and been represented by 
persons not actually residing in the same. From which your 



116 NEW YORK 

petitioners conclude, that the construction put upon those 
words by the Parliament of Great Britain, clearly shows, that 
the intention of the said act of parliament was not to exclude 
non-resident members from their seats in parliament, but to 
exempt them from the burden of serving for places where they 
do not reside, and to which the common law would compel 
them, were they not thus exempted, and is evidently in favor 
of your petitioners being represented by persons not actually 
residing in the said manor who do not except to the service. 

"Secondly — Because, except in three instances (excluding 
at present the case of the said manor) it has been the invariable 
usage of the General Assemblies of this Colony, to admit 
representatives to represent the several counties in this colony 
who did not actually reside within the same, of which your 
petitioners find upon the journals of the house, twenty-one 
examples; and with respect to the said three instances, which 
were the cases of William Nicoll and Dirck Wessels, in the 
year 1701, and of Edward Holland, in 1745; your petitioners 
doubt not they will appear from the said Journals, to have 
originated from party spite, expecially, as in the year 1743, 
Mr. Gabriel Ludlow, was admitted by the then General 
Assembly, on a controverted election, a representative for 
Orange County, though he then resided in the city of New 
York. 

"Thirdly — because the said manor of Livingston, in 
particular, except only in three instances, has been constantly 
represented in General Assembly, for the course of fifty-three 
years, by persons not actually residing within the same, 
which your petitioners find to have been the case in eleven 
different assemblies. 

"Fourthly — Because the words in said act of Assembly 
pretended to require the actual residence of the person 
elected, are the same with those respecting the residence of 
the electors; and your petitioners do not remember that it was 
ever doubted that the elector, if duly qualified, with respect 
to his freehold, to vote for a Representative in General 
Assembly, was also qualified to vote, without actually residing 
in the county in which his freehold lies, from which they con- 
ceive it evident, that a freeholder may also be elected, and is 
duly qualified to serve, notwithstanding his not actually 
residing; and the same Philip Livingston, being a freeholder 
in the said manor, your petitioners conceive his right to serve 
as a representative for the same, cannot be called in question, 
without at the same time impeaching the right of every non- 



NEW YORK 117 

resident freeholder to choose a representative for the county, 
in which he has a freehold. 

"Fifthly — Because your petitioners are advised, that in 
construction of law, and by solemn adjudications in the 
courts of justice, every person does reside in the county, 
manor or borough, in which he is a freeholder. 

"Sixthly — Because the contrary construction would re- 
duce great numbers of the inhabitants of this colony to the 
grievous and unconstitutional hardship of being taxed for 
estates which are not nor can be represented, and introduce 
the pernicious doctrine of a virtual representation, invented 
by the enemies of America, and manifestly tending to the sub- 
version of that most invaluable privilege of not being taxed 
without our own consent. 

"Seventhly — Because by the first section of the above 
mentioned act for regulating elections, it is among other 
things enacted, that the place where the freehold of the 
elector lies, shall be set down by the clerks of the poll, and no 
notice is required to be taken of the place of his residence, 
whence your petitioners infer that the actual residence of the 
elector is not by the said act, intended as any part of his 
qualifications to choose, and as by the first section of said act 
the words dwelling and resident are applied both to the electors 
and elected and must, as before observed, be understood in the 
same sense, your petitioners think i,t plainly follows, than at 
actual residence cannot, in the sense of the act, be a necessary 
qualification for the elected nor requisite to entitle him to a 
seat in this honorable house. And this construction, your 
petitioners conceive, farther corroborated by the oath pre- 
scribed by the same act, which only respects the elector's 
freehold, without taking any notice of his residence And, 

"Lastly — Because the legislature have in the tenth 
section of the said act, clearly distinguished between a legal 
and actual residence, by enacting that the freemen of the 
cities of New York and Albany, who have actually dwelt in 
the said cities respectively, three months before the tests of 
the writs of election, shall have liberty to vote in their re- 
spective corporation. 

"For all which reasons, your petitioners pray this honor- 
able house, to reject the said motion, as contrary to the true 
sense and spirit of the said act of assembly, the usage of 
parliament, and the general course of proceedings in assembly. 
Manor of Livingston, April 18, 1769." " 

"Assembly Journal (1766-1776), 59. 



118 NEW YORK 

After the reading of this petition the motion to dismiss 
Livingston was carried. Those voting in the negative were 
practically the same as the list given above. Livingston was 
a New York merchant.^^ 

The session of April, 1769, to May, 1770, was marked by 
another contest. On the second day of the session, a petition 
from certain inhabitants of Westchester was persented asking 
for the seating of John De Lancey in place of Lewis Morris, 
who was not a resident, according to the petition. A week 
later when the matter was up again Representative De Witt 
made this speech : 

"As it is essential to civil liberty, that no tax be levied 
that is not the free gift of the people, and the distresses into 
which these colonies have, for several years past, been plunged, 
flow from the pernicious doctrine of a virtual representation, 
and it is the indispensible duty of this house to discountenance 
it to the utmost of their power; and since the exclusion of a 
member holding a freehold in the county or place for which he 
is returned, from having a seat in this house, on account 
of his non-residence there, may draw into question the rights 
of electors to the choice of representatives, in places where 
they do not reside, and the taxation of the estates of such 
persons, will consequently strongly imply the approbation 
of this house, of the odious and dangerous principle assumed 
by the enemies of the colonies, and the prosperity of the 
whole empire." ^^ 

Counsel for Morris and De Lancey presented their argu- 
ments before the house on April 15. The former contended 
that the act of 1699 did not apply to Westchester but gave no 
reasons in support of his argument. If it did apply, he con- 
tinued, Morris had a right to his seat as he had 

. "a considerable estate within the said borough." 

Final action came on April 20, when it was decided that Morris 
did not have such a residence in Westchester as qualified him 
to represent it and his dismissal was ordered. ^^ This decision 
did not stop the proceeding, however, regarding the con- 
tested election. On April 26, it was announced to the House 

«2 Schuyler, I, 280. "Assembly Journal (1766-1776), 27. 28. 

"Ibid.. (1766-1776), 6, 8, 22, 26, 28. 30, 36. 37. 38, 42. 51. 68. 75, 77. 



NEW YORK 119 

that the two contestants had agreed that fourteen non- 
resident electors had voted for De Lancey, and three for 
Morris,^^ and that if the House decided that non-resident 
electors had no right to vote De Lancey would drop the con- 
test and give Morris the seat. The House decided that non- 
resident electors had the right to vote for representatives.^^ 
De Lancey then asked the privilege of introducing the follow- 
ing bill: 

"An Act to explain and amend an Act entitled 'An Act 
for Regulating Elections of Representatives in General 
Assembly' made and passed the eighth of May one thousand 
six hundred and ninety nine, in the eleventh Year of King 
William the third." " 

The first part of the act is taken up with the question 
whether a person having a freehold in a certain county or 
town should be allowed to vote there though a non-resident. 
The law gave such persons that privilege provided that in 
other respects they qualified as electors. On the subject with 
which this study deals the act provided: 

"And Whereas it is highly necessary that the Representa- 
tives Chosen to serve in General Assembly should not only 
have improved Landed Estates amongst their Constituents 
but ought also to be inhabitants and actual residents among 
them to the end that they might be perfectly acquainted with 
the true state and Circumstances of the People they are to 
represent, to prevent therefore the many inconveniences that 
may arise by choosing Non-Residents to serve in the General 
Assembly. 

"Be It Further Enacted by the Authority aforesaid that 
no Person shall hereafter be capable of being elected a Repre- 
sentative to serve for any City, County, Town, Borough or 
Manor in this or any future Assembly, unless his usual Place 
of abode shall be in such place for which he shall be so elected, 
and has been so for six months at least before the Test of the 
Writ of Summons, and unless he shall have possessed a 
sufficient Freehold Six Months before the Test of the Writ of 



" Non-resident electors voted for a resident. 

"While the Morris-DeLancey contest was on Colonel Schuyler asked for the ap- 
pointment of a committee to investigate the whole question of non-residence representa- 
tation giving the names of men, towns, counties, dates and time of representation. This 
was not acted upon. 

" N. Y. Col. Laws, IV, 1094. 



120 NEW YORK 

Summons, free from all incumbrances whatsoever, situate and 
being in the City, County, Town, Borough or Manor for which 
he shall be so elected." "* 

The use of the phrase "usual place of abode" in the above 
instead of the word "resident" or "residing" was doubtless an 
attempt to get around the double meaning of "resident" 
which was then common in English political practice and 
which could be brought to the fore whenever a wealthy New 
York or Albany man wished to be elected from a county in 
which he had an estate. 

This law received the approval of governor and council. 
When it came before the council it received only one dis- 
senting vote, that of William Smith, Jr. His reasons were: 

"Because incapacitating non Residents from representing 
their Electors is an alteration of the Election Act of 1699 
(the first section of which is nearly similar to the Statute of 
the 8th of H. VI., Cap. 7) is repugnant to the constant usage 
of Parliament, and the general practice of the Assembly for 
near seventy years past, abridges the Right of Electors in all 
the Counties, and may be very prejudicial to the City and 
County of New York in particular, where it is for many 
reasons most probable the greater number of non Resident 
Members would reside; and is the more unreasonable with 
respect to the City since this Capital sends only four out of 
twenty seven Members, tho' it bears one third part of the 
Burden in all Publick Levies." ^^ 

On May 26, 1769, Governor Moore wrote to the Earl of 
Hillsborough regarding four bills out of the twenty passed at 
the session of 1769 and to which he had given his assent. 
Referring to the election act he said : 

"Altho' the title of this Act sets forth, that it was in- 
tended to explain and amend an Act passed so long ago as the 
year 1699, I believe it will appear to your Lordp and to every 
unprejudiced person, that the Law in question, did not 
require any real explanation, or that any doubts could pos- 
sibly arise concerning the meaning of it, as it is expressly 
declared therein, that all persons chosen representatives in 
the General Assembly, as well as the Electors themselves, 

•« N. Y. Col. Laws, IV, 109S. " Journal of the Legislative Council. II, 1706. 



NEW YORK 121 

shall be resident in the Cities, Counties and Manors, where 
such election is made. The present Law declares that the 
Representatives must be Resident, but that the Electors are 
not obliged to be so, and gives an explanation of the Act 
repugnant both, to Reason and Justice, as these persons 
whose usual residence is in this City, and are in general best 
qualified for representatives in the House of Assembly, are 
precluded from being chosen in any County or Borough, 
notwithstanding they may have a considerable Estate there."'"' 

Despite the governor's opinion of this measure he ap- 
proved it. The balance of his letter is an explanation why he 
did so, and gives us an insight into the influences which 
actuated the royal governors in many of their contests with 
the colonial legislatures. The disapproval of the election act 
of 1769 by the crown in June, 1770, left the province under 
the act of 1699. 

Only one more contest hinging on the question of residence 
occurred before the adoption of the first state constitution. 
In 1772 John De Lancey was returned for Westchester and 
his seat was challenged on the ground that he was a non- 
resident. While the question was up De Lancey himself 
moved : 

"That before the house come to a determination on this 
matter, that they resolve that no person is capable of being 
elected a representative to serve for any city, county, town, 
borough or manor, in this or any future general assembly, 
unless he be an actual resident, and shall continue to reside 
in such place for which he shall be so elected, and hath re- 
sided at least six months before the test of writ and sum- 
mons." ^^ 

This motion was passed but there is no record of its ever being 
sent to the council or the governor for approval. The vote on 
De Lancey's right to his seat was then taken and he was dis- 
missed as a non-resident. This action is hard to understand 
in the light of the Morris-De Lancey controversy of just three 
years previous in which Morris was dismissed from the 
assembly for non-residence and De Lancey was given his place. 

'» N. V. Col. Docs., VIII, 167. " Assembly Journal (1766-1776), 17. 



122 NEW YORK 

De Lancey had received an English military education and 
later fought with the English in the Revolutionary War," 
so it is possible that his dismissal grew really out of dislike for 
his political convictions. 

This brings us to the end of the colonial period, the point at 
which, or before which, our study of each colony generally 
ends, for by that time most of them had a definite and well 
recognized residential qualification for representatives. As 
we have seen. New York had a law on that subject dating back 
to 1699, but we have also seen that the electors had put a 
construction on the word "residence" which practically 
nullified the law. 

So we might say that when New York adopted its first 
constitution it had no residential qualification for repre- 
sentatives as that qualification was generally understood. 
In order that our study may be complete we will examine 
briefly the question of residence as related to representation 
from the first constitution of 1777 until the rejected one of 
1915. 

The Constitution of 1777 was hastily adopted (March 12- 
April 22).''^ It was not voted on by the people. It is said 
that the convention was dominated by the landowning and 
conservative classes. John Jay was perhaps its ablest mem- 
ber. An attempt was made to insert a residential qualifica- 
tion for representatives. Draft A of one section under the 
general heading (Assembly Districts) read: 

". . . That all Elections for Representatives in general 
Assembly be made in every district annually by ballot in 
such mode as the Legislature may prescribe. That every 
district chuse one person to represent the County out of the 
Freeholders who shall actually and in fact reside within such 
district." "^^ 

No such provision was included in Draft B nor in the final 
draft. This constitution made provision for a senate to take 
the place of the legislative council. An attempt was made to 
limit the senators to residence in their districts. 



" Shonnard-Spooner, History of Westchester County, 266. 
"Alexander, I; Chap. II. "Lincoln, I, 505. 



NEW YORK 123 

"And this convention do ordain that no freeholder shall 
be eligible to the office of senator in any other of the great 
districts than the one in which he shall usuall and in Fact 
reside. . . ." 

This, like the similar provision for representatives, was not 
included in the final draft. 

The question of residence as a qualification for repre- 
sentatives was apparently never raised in the constitutional 
conventions of 1801" and 1821. The constitution of 1821 did 
establish a residential qualification for electors however. All 
property qualifications for electors were removed by an 
amendment in 1826,^^ while property qualifications for certain 
office holders were not removed until 1845 by amendment. 

In the convention which drafted the constitution of 1846 
there was long and earnest debate over the proper method of 
dividing counties into assembly districts. Rhoades, of 
Onondaga, proposed that 

. . . "members of assembly may be chosen from any portion 
of the county in which such districts are situated, but shall be 
resident of the county." 

He admitted that at the time while there was no law on the 
subject the custom of not going outside the county had 
acquired the force of law. Nicholas, of Ontario, said that, 

"If the Constitution sanctions the selection of candidates 
out of the districts where they are to be voted for, it must 
defeat the principle objects of the single district system, which 
are to prevent political combinations in large counties, and to 
bring the candidate and his constituents nearer together, so 
that candidates may be generally known within their dis- 
trict." 

The Rhoades proposition was defeated. The reason for 
the refusal of the convention to act upon it is not evident but 
the probability is that the situation was as follows: Men 
were usually chosen from their districts; the refusal to 
establish a definite rule on the subject was not to continue the 

" To this convention Aaron Burr of New York City was ctiosen a delegate by Orange 
County. (Lincoln, II, 132.) 
"Lincoln, II, 7. 



124 NEW YORK 

privilege of non-residence representation but because the 
convention felt that custom was strong enough to regulate 
the matter. 

The constitution framed by the convention of 1867 was 
not ratified by the people at the polls. Although it never 
came into effect it contained one section bearing on this 
subject. As finally submitted to the people Section I, Article 
III, read: 

"The legislative power shall be vested in a senate and 
assembly. Any elector shall be eligible to the office of senator 
and member of the assembly." 

Edwin A. Merritt, who proposed the last sentence of the 
section, gave as his reason that he wished to make clear that 
any elector was eligible to be elected to the offices mentioned 
in any part of the state. 

The Constitutional Convention of 1872 proposed several 
amendments to the existing constitution of the state which, 
after being slightly altered by the legislature, were ratified in 
November, 1874. One of the amendments changed Article III, 
Section I, which was the section on "Legislative Power". 
The convention considered the subject of qualifications for 
assemblymen and senators including propositions that no 
person should be eligible except an elector, a male citizen, 
and a citizen of the United States; and that he should have 
attained a certain age. The question of a residential qualifica- 
tion was not considered. None of the above proposals was 
adopted, and the article finally submitted to the voters con- 
tained no qualifications whatsoever for either office. 

The Constitutional Convention of 1894 drafted the 
constitution which is now in force except as it has since been 
amended. Article III, Section III, of this provides for sena- 
torial districts and Section V for assembly districts. Neither 
article contains a requirement that a senator or assemblyman 
shall live in his district. 

New York stands practically alone among the states of the 
Union in the lack of a residential qualification for both 
senators and representatives. The status of the matter at 



NEW YORK 125 

present is exactly that found in an opinion of the attorney- 
general of the state growing out of a contested election case 
in 1858. 

In that year James Dolan contested the seat of John G. 
Seeley, elected from the fourth Assembly District in New 
York City, on the ground that Seeley was a non-resident. 
While the committee was taking testimony on the question 
as to the fact of residence or non-residence, the assembly 
asked Attorney-General Lyman Tremain for an opinion on 
the subject of residence as a qualification for representatives. 
In the meantime the committee had decided that Seeley was 
a resident of his district as the term was used 

. . . "in all statutes upon the subject of elections and 
qualifications of voters." ^'^ 

A minority report was brought in in the Seeley-Dolan contest 
which declared that three years prior to the election Seeley 
had moved his family to Washington County and that their 
permanent home had been there since. The report continues: 

"Now the structure of our republican form of government 
or system depends, . . . upon the representations of 
certain portions of the State, by persons identified with the 
interests of such portions; and for this reason, the Constitu- 
tion has apportioned the entire State into districts, giving to 
each its proper delegate, in order that through such delegate, 
the local wants and rights of the district should be properly 
represented in the State Legislature. If it had been of no 
importance that each district should be thus separately and 
peculiarly represented by its own local citizens, then the 
Legislature might as well be elected upon a State ticket, and 
the members taken indiscriminately from any and all sections, 
and a merchant doing business in New York, may be chosen 
to represent the farming interests of Washington County, or 
the fishing interests on our lake shores." '^ 

Because of the decision of the committee regarding Seeley's 
residence the attorney general's opinion did not affect the 
decision of the assembly on seating Seeley. But since, as we 

" Assembly Documents 1858, Vol. IV., No. 95. Testimony of witnesses as to Seeley's 
residence can be found in Assembly Documents, 1858, Vol. IV, No. 101. 
'• Assembly Documents, 1858, Vol. IV, No. 97. 



126 NEW YORK 

have already stated, the present status of the question under 
consideration is covered by this opinion, just as though it had 
been delivered this year we will close our study of New York 
with it. 

"A disqualification to hold any particular office should be 
expressed, in explicit terms, either in the constitution or laws 
of the State, or follow by necessary implication for what is 
declared. Whenever residence in the locality from which the 
officer to be elected is chosen is essential, it is usually de- 
clared to be a necessary qualification in unequivocal language; 
thus, we have a statute providing that no person shall be 
eligible to any town office unless he shall be an elector of the 
town for which he shall be chosen. This provision, of course, 
renders it necessary that he should be a resident of the town 
at the time of his election. 

"In cases of sheriffs, clerks of counties, district attorneys, 
judges of county courts, recorders of cities, and other officers 
particularly named in the statute, they are required to reside 
within the cities or counties for which they shall be respectively 
appointed or elected. 

"We have also a general statute declaring that no person 
shall be capable of holding any civil office in the State, unless 
at the time of his election, or appointment, he shall have at- 
tained the age of twenty-one years, and shall be a citizen of 
this state. 

"It is further provided by general statute, that every 
office shall become vacant whenever the incumbent shall 
cease to be an inhabitant of the State. . . . 

"The Constitution provides for the apportionment of the 
members of Assembly among the different counties . 
but seems to be entirely silent in reference to the qualifications 
of such members in regard to residence or any other particular. 
Nor is there any statute of the State that I have been able to 
discover, providing . . . that the member of Assembly 
shall reside within the district for which he shall be elected. 

(In the next paragraph he refers to the fact without 
mention of name that Martin Van Buren, a resident of Albany, 
represented Orange County in the Constitutional Convention 
of 1821.) 

"The office of member of Assembly is not a local office, 
but on the contrary the duties of the office may be discharged 
beyond the limits of the district from which the member is 
chosen. 



NEW YORK 127 

"It is my opinion that there is nothing in the Constitution 
or laws of this state which prohibits the people in any assembly 
district from electing a member to represent them in the 
assembly of this State, who resides in another Assembly 
district, providing he is of age, a citizen of the state, and not 
otherwise disqualified. 

Lyman Tremain, 

Attorney-General." ^^ 

So many elements have entered into this study of New 
York that are different from those affecting the New England 
States that it will be well to summarize them briefly. 

The manorial tradition and the pernicious practice of the 
granting of great patents by the governor were peculiar to 
New York. As a result of this wealthy merchants and 
traders soon came to hold great estates along the Hudson and 
even back from the Hudson as the power of the Indians 
gradually decreased. Then New York was a typical royal 
province. It might be within the bounds of truth to say that 
the king, formerly the proprietor, sought to make it the 
model colony. Anyway, the similarity of its social, commercial, 
and political life to that of England in contrast to that of the 
corporate colonies of New England, is striking. 

These two factors taken together give one the setting for 
the study of a residential qualification for representatives. 
The whole contest which has been given at length above was 
between the large landowning class and the wealthy merchant 
class, often one and the same, on the one hand, and the smaller 
landholding freemen of the rural communities, on the other. 
The former class held to the English belief and custom that 
ownership carried with it residence ; in other words that legal 
residence and actual residence were two quite different terms, 
yet one kind carried with it all the privileges of the other. 
This view is set forth in full in the petition of the freehloders 
of Livingston Manor, given on pages 115-117. 

The intent of the law on the subject is quite clear. 
There certainly is no doubt that the Act of 1699 meant to 
restrict the right of representation to actual inhabitants of a 

"Assembly Documents, 1858, III, 54. 



128 NEW YORK 

manor, county, or borough. This act remained the law of the 
province to the end of the colonial period yet it was con- 
tinually violated just as in England during the same period, 
no attention was being paid to the Act of 8 Henry VI, which 
established a residential qualification for members of the 
House of Commons. The petition of Livingston Manor 
already referred to states that down to that date the journal 
of the assembly showed twenty-one examples of non-residence 
representatives. Futhermore, that their own manor, except 
for three instances, had been represented for fifty-three years 
by a non-resident. Yet we have found during the whole 
eighteenth century only five cases of members of the assembly 
being challenged and unseated because of non-residence. 
On the other hand we had the example given above (Gabriel 
Ludlow, 1743) of the assembly seating a man who was a non- 
resident and whose seat was challenged by a resident. 

It seems quite evident that every case of dismissal from 
the assembly for non-residence was purely partisan action. 
Whenever one faction wished to get rid of a particularly 
obnoxious member of the opposite faction they could always 
invoke the law of 1699 — given two things — first, a clear 
majority of the assembly, and second, the intended victim 
happening to be representing a community where he did not 
reside. For example, of the five contested cases given two 
of them were in 1701 and two in 1769, in both of which 
assemblies partisan feeling ran high. 

In the charter colonies we have found that the men 
chosen as non-resident representatives were often holding 
other high colonial office. There was not nearly so much of 
this in New York, and the reason is, of course, that in the latter 
province all such men were royal appointees. There was a 
law passed quite early denying the right of a seat in the 
assembly to a provincial officeholder. It was frequently 
violated but almost never without protest.^" 

•» In 1750 Colonel Lewis Morris sought to oust Peter DeLancey as a representative 
from Westchester, as he was at the same time a judge of the Supreme Court. This at- 
tempt was unsuccessful (N. Y. Col. Docs., II, 282). But in 1772 Robt. R. Livingston, 
a judge of the Supreme Court, was refused a seat as the representative of Livingston 
Manor. This happened again in 1774. 



NEW YORK 129 

In closing the study of New York let us note that the 
division between New York City and the balance of the state 
in the assembly, a division which is more marked than in 
any other state of the union, is not of recent origin. 

Every definite example of non-resident representation 
which we have been able to find shows the non-resident to 
have been a New York City merchant. In practically every 
vote in the assembly on the question of non-resident voting 
or non-resident representation we find the New York City 
delegation voting solidly in favor of each. The attitude of 
the prominent and politically powerful men of the city is 
shown above (p. 120) in the reasons given by Councilor Smith 
for his opposition to the election act introduced by De Lancey 
in 1769. Evidently the city, or at least certain classes of the 
city, felt that a resident of the city chosen to represent some 
outlying county or borough where he owned property could 
not forget the interests of the city where he actually resided 
while representing the town, county, or manor where he 
"legally" but not "actually" resided. And furthermore, that 
every such representative made up for the disproportionate 
representation which the city had considering the amount 
it paid in taxes. 

The situation at present is as we have shown, that New 
York has no residential qualifications for its assemblymen or 
senators. The custom that a man must actually live in the 
district he represents, with the possible exception of the large 
cities where the line between assembly districts does not stand 
out with the prominence of a county boundary, in all prob- 
ability controls the electors with all the force of law. The 
absence of a definite statute is a fine example of the tenacity 
with which a long established political tradition clings to and 
molds our political expression and practice. 



NEW JERSEY 

The political history of New Jersey so far as this study is con- 
cerned divides itself into four distinct parts. 

(1) The period of union from the granting of the deed 
of release by the Duke of York to Berkeley and Carteret in 
1664, to the division of the province by the Quintipartite Deed 
in 1676. 

(2) The independent existence of East Jersey between 
the above date and the incorporation of New Jersey with the 
New York government in 1702. 

(3) The independent existence of West Jersey for the 
same period. 

(4) The surrender of the province in 1702 by the pro- 
prietors of both East and West Jersey and the inclusion of 
the united province under the authority of the royal governor 
of New York. 

A reading of the colonial records of this province gives one 
the impression that its political life was marked by greater 
turmoil than that of perhaps any other colony or province. 
If this be true it was undoubtedly due to three things. 

First, the assumption of governmental authority by the 
original proprietors, Berkeley and Carteret, and by their 
assigns. 

Secondly, the presence of so many Quakers in the province 
and among the later proprietors. The effect of this situation 
is easily seen when one remembers that during a large portion 
of the colonial era matters of defence, so called, occupied to a 
large degree the attention of colonial legislatures. 

Thirdly, during the later provincial period the growing 
contest between the proprietors and anti-proprietors as the 
latter continually increased in number. 

The whole character of early New Jersey history is de- 
termined, as Osgood points out, by the fact that the con- 
tinued assumption and exercise of political authority by 
Berkeley and Carteret practically gave them possession of it, 
although the right to exercise it was challenged from many 
quarters. 

130 



NEW JERSEY 131 

The fault of the whole matter seems to lie in English 
officialdom. The deed of release^ from the Duke of York to 
Berkeley and Carteret in 1664 certainly gave them, on the 
face of it, governmental powers. So did his deed of release of 
July 29, 1674, granted after the reoccupation by the English; 
for the wording was the same as in the earlier deed. This last 
deed was given only to Carteret, for in the meantime Lord 
John Berkeley had sold his half to John Fenwick in trust for 
Edward Byllinge.^ This was the first of a number of divisions 
and subdivisions which finally resulted in New Jersey having 
what might be called a surplus of proprietors. 

The duke's second deed to Carteret was given as stated 
above on July 29, 1674, despite the fact that Andros had been 
appointed governor of New York and New Jersey on July 1, 
1674.^ Thus, within the same month two governmental 
bodies had been established over the same territory. But 
legally, it seems that the leases and releases of the Duke, 
despite their plain wording, were nothing but deeds for land. 
Under the English law, the Duke of York, or anyone else, could 
not transfer governmental power to others; its only source 
was the crown. It was this interpretation of the leases which 
accounts for Andros' attempt to exercise political control over 
the Jerseys. Another cause for political dissension within the 
province was the circumstances attending the settlement of 
the towns of the Monmouth patent.* 

Acting under what they presumed was their right, Berkeley 
and Carteret set up a government in their new province by the 
promulgation of the Concessions and Agreements^ in 1665 and 
by the appointment of Philip Carteret as governor and a 
little later by the appointment of six councilors. The main 
points of the "Concessions" were: 

' Learning and Spicer, 8. 

2N. J. Archives, I, 237, 326; XXI, 559. > Ibid., I, 156. 

* The deed for this settlement had been given by Governor Nicolls and both deed 
and settlement antedated 1664. The towns of this patent claimed to be an independent 
jurisdiction The first assembly in New Jersey was held here in 1667. Deputies were 
present from Middletown, Shrewsbury and Portland Point (Highlands of Navesink). 
The assembly was called "The General Assembly of the Patentees and Deputies". It 
met for several years but exercised local functions only. See paper on Monmouth County 
during Provincial Era by Hon. Joel Parker, 2 Proc. N. J. Hist. Soc, III. 

» Leaming and Spicer, 12-26. 



132 NEW JERSEY 

(1) Government of the province to be exercised by a 
governor, council and general assembly. 

(2) The general assembly to be composed of governor, 
council and a representative body chosen as follows : 

"That the inhabitants being freemen, — do as soon as 
this our commission shall arrive — make choice of twelve 
deputies or representatives from amongst themselves; who 
being chosen are to join with the said Governor and Council 
for the making of such laws, ordinances and constitution as 
shall be necessary for the present good and welfare of the said 
Province. 

But as soon as parishes, divisions, tribes and other dis- 
tinctions are made, that then the inhabitants or freeholders 
of the several respective parishes, tribes, . . . do . . . 
annually meet on the first day of January, and choose free- 
holders for each respective division . . . to be the deputies 
or representatives of the same which body of representatives 
or the major part of them, shall with the Governor and Council 
aforesaid, be the General Assembly of the Province." ^ 

(3) Assembly empowered to appoint times of its meetings 
and adjournments. 

(4) Empowered to enact all laws provided that they be 
consonant to reason, agreeable to the laws and customs of 
England and not against the interests of the proprietors. 

(5) Laws to remain in force one year while under con- 
sideration by the Proprietors. 

(6) Assembly given power of taxation except over the lands 
of the Proprietors before settling. 

The first assembly held under the authority of the "Conces- 
sions" of 1664 was in May, 1668. It met at Elizabethtown : 
the following towns sent representatives: Bergen, Newark, 
Elizabethtown, Woodbrdge, and the towns of the Monmouth 
patent. 

Another session was held in November at which appeared 
two representatives from "Delaware River" in addition to 
those who' were present at the May session. The towns of 
the Monmouth patent chose two representatives but in- 
structed them not to take the oath unless it contained a 
reservation recognizing the validity of NicoU's land grants.'^ 

« Learning and Spicer, 14-15. 

' The towns explained the appearance of their representatives at the first session by 
saying the men who pretended to represent them had no authority to do so but had been 
chosen by some of their friends (Middletown Town Book). 



NEW JERSEY 133 

These representatives were not seated. Only a few laws were 
passed by this assembly, none of which affects this study. 
Assemblies also met in 1671 and 1672 but we have no record 
of their proceedings. This brings us to the close of the first 
period of united government. The division into East and West 
Jersey became operative immediately after the English re- 
occupation of 1674, although the official separation by the 
Quintipartite Deed was not until two years later. 

East Jersey 

When Philip Carteret returned from England in 1674 as 
governor of East Jersey, his instructions^ declared, among 
other things, that the governor and council should have the 
power of admitting freemen; that to governor and council 
belonged the power of summoning and adjourning the as- 
sembly; and that the general assembly should continue to sit 
as two houses.^ This was a great strengthening of executive 
power. Conditions in the province now became more settled 
due in part to a letter from Charles the Second, commanding 
all parties to yield obedience to the governor, and in part to 
an opinion from England, signed by eight prominent lawyers, 
unfavorable to the Nicoll's patentees.^" 

From 1674 to 1680 Carteret was in a constant struggle 
with Andros who was seeking to assert his authority over the 
Jerseys. The latter so far succeeded that at one time he had 
Governor Carteret arrested and taken to New York as a 
prisoner. In the fall of 1680 a release was issued to the pro- 
prietors of both Jerseys. This granted to them the free use of 
all waters and all the 

"powers, authorities, jurisdictions, governments, 
and other matters and things whatsoever." " 

This lease, like the ones which had gone before it, was invalid, 

» N. J. Arch. I, 167-173. 

' In a document dated 1672 signed by Carteret and Berkeley and which professed to 
declare their "true intent and meaning in granting the concessions," provision was made 
for the assembly to sit separately from the governor and council and giving the latter the 
power of summoning and adjourning. Some inhabitants complained that this document 
altered the concessions in important particulars. It did that very thing. Learning and 
Spicer, 33, 34. 

»» N. J. Arch., 1, 154. " Jbid., I, 324, 337. 



134 NEW JERSEY 

but it was recognized by Andros, and so for a time East Jersey- 
had peace with its nearby neighbor on the east. 

Just at this time East Jersey was sold at auction by the 
trustees of Sir George Carteret to William Penn and eleven 
associates. The number of proprietors, by later transfers, 
was soon increased to twenty-four. 

"No province except East Jersey," after the process of 
settlement progressed so far, was subjected in this sudden 
fashion to such a change of rulers." '^ 

With the change of ownership came a change in the theory of 
provincial government, if not in actual practice. The new 
plans show plainly the ideas of Penn and of his Quaker as- 
sociates regarding the right of the individual to a free partici- 
pation in the government under which he lived. 

The Fundamental Constitutions^-^ of 1683 were never put 
into effect, but it is worth while to note the provisions of this. 
The province was to be governed by a great council con- 
sisting of the twenty-four proprietors and one hundred forty- 
four representatives elected by the freemen of the province. 

"The persons qualified to be freemen, that are capable 
to choose and be chosen in the great Council, shall be every 
planter and inhabitant dwelling and residing Avithin the 
Province, who hath acquired rights to and is in possession of 
fifty acres of ground and hath cultivated ten acres of it; 
or in boroughs, who have a house and three acres; or have a 
house and land only hired, if he can prove fifty pounds in 
stock of his own." ^* 

No serious attempt apparently was ever made to put this plan 
in force. It may have been, and probably was, unwieldy. 
Besides, the inhabitants had a system which was working and 
under which each freeholder had a voice in the government. 
During the period of independent existence there were nine 
assemblies or at least nine sessions of the assembly.^^ The 
acts of none of these affect the subject of this study until we 
come to the session of 1698. In that year a law was passed 
entitled 



"Osgood, II, 191. ^*Ibid., 155. 

" Learning and Spicer, 154, 155. ^> Ibid.. 93-137; Mulford, 162-256. 



NEW JERSEY 135 

. . . "An Act declaring What Persons are disabled from 
being either elected or serving as Deputies, or Representa- 
tives in General Assembly." ^^ 

The first part of this made it impossible for a member of the 
council or a proxy or agent for a proprietor to be chosen as a 
deputy or representative. Then the act continues: 

"And be it further enacted by the authority aforesaid, 
that no person chosen as deputy or representative, shall serve 
for any other place, but that where he and his family re- 
sides. . . ." 

Another act of this same session was in fact a declaration 
of the rights of the people of East Jersey. This act after 
stating that the supreme legislative power of the province 
rested in the governor, council 

. . . "and the people by their chosen representatives in 
General Assembly" 

provided further — 

"That all the freeholders inhabiting in every of the re- 
spective towns or divisions within this Province, shall an- 
nually meet on the first Tuesday of January, and chuse free- 
holders, inhabitting therein, to be the representatives of the 
same for the ensuing year. And that there shall be a General 
Assembly held every year within this Province to meet in the 
last Thursday of May, by proclamation at Perth Am- 
boy. . . ."'■' 

A later paragraph of the act apportioned the representatives 
among the various towns and counties. 

In the above we have a definite residential qualification for 
representatives. Whether there had been much non-residence 
representation during the preceding years it is impossible to 
state. Not all of the lists of representatives are available and 
in some cases where the names of members occur the towns 
from which they came are not given. The fact that we find a 
residential qualification appearing as early as 1698 is positive 
proof that at the time of its adoption both proprietary and 
royal authority were weak and almost inoperative in the 

" Learning and Spicer, 367. . " Ibid., 368, 371. 



136 NEW JERSEY 

province; in other words the province of East Jersey during 
the latter part of its separate existence was practically inde- 
pendent in all but name. The reason for the above statement 
is the fact, as exemplified in later New Jersey history and in 
New York, that whenever the proprietary or royal govern- 
ment was strong and was being administered by alert and 
capable men all efforts on the part of the people to have 
their representatives chosen from a limited area where their 
chief interests lay always met with opposition. 

West Jersey 

In taking up the study of this province we find in the 
Concessions and Agreements of 1677^^ an elaborate plan of 
government more democratic than that of the corporate 
colonies of New England. Some students feel that this plan 
rather than that set up in Pennsylvania reveals the political 
ideas and ideals of Fox, Penn, and other leading Friends. The 
full title of this plan of government was 

. . . "The Concessions and Agreements of the Proprietors, 
Freeholders and Inhabitants of the Province of West New 
Jersey in America" 

and it was signed by the proprietors and a large number of 
freeholders and inhabitants on March 3, 1677. Chapters 
XXXII to XL deal with the powers of the general assembly. 
The first chapter referred to reads in part : ^^ 

"That so soon as divisions or tribes, or other such like 
distinctions are made; that then the inhabitants, freeholders, 
and Proprietors, resident upon the said Province ... do 
yearly and every year meet on the first day of October, . . 
and choose one Proprietor or freeholder for each respective 
propriety in the said Province (the said Province being to be 
divided into one hundred proprieties) to be deputies, trustees 
or representatives for the benefit, service and behoof of the 
people of the said Province : which body of Deputies, trustees 
or representatives, consisting of one hundred persons, chose 
as aforesaid, shall be the general, free and supream assembly 
of the said Province for the year ensuing and no longer." 

" N. J. Arch.. I, 241-270. 
>»/6»d., I, 263. 



NEW JERSEY 137 

The assembly thus provided for was to be practically 
absolute. In addition it was not to be chosen 

"by the common and confused way of cry's and 
voices, but by putting Balls into Balloting Boxes." 

It should be noted that no particular power was reserved to 
the proprietors except such as would come to them as in- 
habitants and freeholders within the province. 

As has been pointed out in connection with East Jersey 
the years between the division of the province and 1681 were 
years of contest with Andros, who was seeking to exercise 
authority, and did to a limited extent, in both Jerseys. The 
year 1681 as already stated, marks the date of the withdrawal 
of claims on the part of the New York governor to interfere 
in New Jersey affairs. That year marks the first assembly in 
West Jersey. Most of its acts were in confirmation of pro- 
visions of the Concessions. One act provided that there 
should be an annual assembly 
. . . "chosen by the free people of the Province." ^^ 

It also provided that the assembly was not to be prorogued 
without its consent and that the governor must confirm its 
acts. The next year the assembly announced that it was its 
judgment and that of those by whom they were chosen that the 
. . . "most regular way of preserving liberty and property" 
by a lawful free assembly was 

. . . "that each ten proprieties, chuse their ten representa- 
tives where they are peopled." ^^ 

This is ambiguously worded and is open to two possible 
interpretations. It was not an act but simply a suggestion, it 
seems to me, to the people of each propriety to choose residents 
when electing representatives. Mulford^^ (p. 239) holds this 
view and says the discussion which preceded it was over the 
comparative advantages of direct and general elections. 

The Assembly of 1683 provided for different dates of 
election in the different tenths.^^ Such an arrangement as 

" Learning and Spicer, 423. 22 A Civil and Political History of New Jersey. 

" Ibid., 443. " Learning and Spicer, 473. 



138 NEW JERSEY 

this was always for the convenience of the non-resident voter. 
This same assembly provided that thereafter all civil officers 
of the province, including governor and councilors, were to be 
chosen by the assembly. 

In 1686 the assembly gave each proprietor one proxy in 
the assembly provided the proxy resided on the proprietor's 
land. No further act appears which bears even indirectly on 
this study, until in 1694 when the basis of election was changed 
from tenths to counties. Representatives were apportioned 
among the counties; electors were to be freeholders within 
their respective counties and the qualifications for repre- 
sentatives were that they be 

. . . "good and sufficient men." ^^ 

A later enactment required that they also be freeholders and 
provided for a different election day in each county .^^ In an 
act of 1699 the counties were mentioned by name with the 
number of representatives to which each was entitled. The 
qualifications of electors was 

. . . "all sufficient freeholders and no more." -^ 

A law in 1701, however, went back to the former provision 
found in the law of 1694. As the separate existence of West 
Jersey come to a close the only reference we have found to a 
residential qualification was in the suggestion made by the 
assembly of 1682. As in the case of East Jersey it is impossible 
to tell whether non-resident representation was practiced. 
We have the names of the members of several assemblies but 
not the names of the divisions from which they came. Three 
things make it probable that there was little or no non-resi- 
dence representation in West Jersey. These three things are: 

(1) The absence of any large towns in the province. 

(2) The Quaker belief in each individual's right to a 
share in the government. 

(3) The absence of proprietary pressure exerted politically 
in order to safeguard proprietary authority. 

" Mulford, 269. =» Learning and Spicer. 533. « Ibid., 568. 



NEW JERSEY 139 

It is not within the province of this study to enter into the 
factors bringing about the transfer of the proprietary govern- 
ment in New Jersey to the crown. Suffice to say that the 
negotiations continued for two or three years and when the 
proprietors were satisfied that their property rights in the 
province would be respected they surrendered their claim to 
governmental power. The official Deed of Surrender^'' was 
dated April 15, 1702. Thus was New Jersey added to the 
growing list of royal provinces. 

Efforts were at once made by each of the different factions 
which had divided New Jersey to have one of its members 
appointed governor. The Lords of Trade, very wisely, 
advised that some one who had in nowise been connected with 
the disorders in the province, be appointed. So Lord Corn- 
bury, who had already been commissioned as royal governor 
of New York, was also commissioned as the first royal governor 
of New Jersey. This appointment of a joint governor for the 
two provinces continued until 1738. Lord Cornbury's in- 
structions,28 dated November 16, 1702, confirming him as 

. . . "Our Captain General and Governor, in Chief in and 
over our Province of Nova-Csesarea, or New Jersey", 

ordered that 

"with all convenient speed, you call together one 
General Assembly . . . ; and that the said General 
Assembly do sit in the first place at Perth Amboy, in East 
New Jersey, and afterward the same, or other the next 
General Assembly at Burlington, in West New Jersey; and 
that all future General Assemblies do set at one or the other 
of those places alternately. . . 

"And our further will and pleasure is, that the General 
Assembly so to be called, do consist of four and twenty repre- 
sentatives; who are to be chosen in the manner following, viz: 
Two by the inhabitants house-holders of the city or town of 
Perth Amboy, in East New Jersey, two by the inhabitants 
house-holders of the city and town of Burlington in West 
New Jersey; ten by the freeholders of East New Jersey, and 
ten by the freeholders of West New Jersey; and that no 
person shall be capable of being elected a representative by 

"Learning and Spicer, 609-618. "Ibid., 619-646. 



140 NEW JERSEY 

the freeholders of either division, or afterwards of sitting in 
General Assembly's who shall not have one thousand acres of 
land of an estate of freehold, in his own right, within the 
division for which he shall be chosen; and that no freeholder 
shall be capable of voting in the election for such representa- 
tive, who shall not have one hundred acres of land of an estate 
of freehold in his own right, within the division for which he 
shall so vote; And that this number of representatives shall 
not be enlarged or dimished, or the manner of electing them 
altered, otherwise than by an act or acts of the General 
Assembly there, and confirmed by the approbation of us, our 
heirs and successors." 

It is interesting to note that the plans for the assembly out- 
lined in the above follow in exact detail a plan proposed in the 
Proprietor's Memorial offering to surrender the Jerseys (1701) 
with the single exception that they asked for an assembly of 
thirty-six; sixteen from each division of the province outside 
the two principal towns.^^ 

According to Lord Cronbury's instructions he could pro- 
rogue or dissolve the assembly. He also had the power of 
veto, which power the proprietors also reserved.^" There 
was a property qualification for both electors and representa- 
tives and the only additional qualification for representative 
was that his freehold must be in the district represented. In 
practice this method was not at all satisfactory to the con- 
stantly increasing anti-proprietary party or faction. Under 
it the election in each division was held at only one place — 
a fact which disfranchised many eligible freemen and enabled 
a few men to choose the representatives for the division. 
For example, in the December election of 1703 in East Jersey, 
the anti-proprietary interests determined to carry the day 
and so they appeared at the chosen place to the number of 
three hundred. On the other side forty-two qualified voters, 
most of them from New York and Long Island, appeared. 
Despite the discrepancy in numbers the sheriff, Thomas 
Gordon, returned the representatives chosen by the forty- 
two.^^ Also it was frequently charged and apparently with 

'•Learning and Spicer, 599-602. 

"Ibid., 650, 651. »■ N. J. Arch., Ill, 14-15. 



NEW JERSEY 141 

truth, that in West Jersey the Quakers continually dominated 
the elections although outnumbered in the province except in 
Burlington County .^^ 

Soon after his first visit to the province Cornbury placed 
himself in opposition to the proprietary party. The first 
session of the first assembly under the new government met 
in 1703. This contained a proprietary majority .^^ The 
second session of the same assembly met in September, 1704. 
This also had a bare majority for the proprietary party, 
despite the efforts of Cornbury and his friends. Friction soon 
developed between the governor and the members of the 
assembly over their dilatoriness in providing for the defence of 
the province, so the governor dissolved it and issued writs for 
a new one to meet in November, 1704.^* 

When the assembly met the governor refused the oath to 
three members from West Jersey. This gave the anti- 
proprietary party a majority and thereby the power to pass 
an election act which they hoped would gain permanent 
control of the assembly for their party. This act abolished 
the election of ten men at large from one division at one point. 
Instead representatives were apportioned among the towns 
and counties. Qualifications for representatives were that 
they must be inhabitants and freeholders of the division for 
which they were chosen and freeholders of the county whence 
they were elected. ^^ Here was a distinct step toward a more 
democratic government; yet a step made possible by the use 
of means in themselves low and unworthy. 

The reaction of the proprietary party to this law was true 
to form. Whenever any propertied interest in the colonies 
objected to the growth or extension of the power of the 
provincial assembly, the objection nearly always rested on 
English law and English practice as a precedent. And so it 
was in this case. The West Jersey proprietors sent a memorial 
to the Lords of Trade objecting to several of Cornbury's acts, 
among them his refusal of the oath to three representatives 

« For the ability of the Quakers as practical politicians, see N. Y. Col. Docs., IV, 
1148, 1171; V, 34. 

"Tanner, 307. " Mulford, 291. "Laws Enacted in 1704 (Bradford Prints). 



142 NEW JERSEY 

and his approval of the new election act. After expressing 
doubt whether the assembly had the authority to alter the 
qualifications of electors and representatives, they point out 
that the qualifications according to their former law were 

". . . a standing and unalterable part of the constitu- 
tion of England, where the electors of knights of the counties 
must have a fixed freehold ; and the elected are generally the 
principal landed men of their respective counties; but the 
alteration now made, was intended to put the election of 
representatives into the meanest of the people, who being 
impatient of any superiors, will never fail to choose such from 
amongst themselves, as may oppress us, and destroy our 
rights." ^^ 

It looks very much as though the initiative in passing a new 
election act was taken by the governor rather than by the 
assembly. In June, 1704, Cornbury recommended to the 
Lords of Trade a change in the property qualifications for 
electors and representatives on the ground that some men 
who had one thousand acres of land were illiterate, while 
there were other very able men with equal wealth but having 
none of it, or only part of it, in land. He also pointed out that 
when the elections were held in only one place in each division 
of the province, it necessitated some men traveling two hun- 
dred miles to vote.^^ 

In February, 1705, Cornbury wrote to the Lords of Trade 
commenting on the laws passed the previous year and urging 
their approval. The reasons he advanced for the approval of 
the election act were the same as those stated in his letter of 
June, 1704, to the same body. The act, however, was not 
approved being in all probability too democratic for the 
queen's advisers.^^ Cornbury's reasons for approving the act 
in question were weighty enough and they must have im- 
pressed the Lords of Trade for in April, 1705, that body 
recommended to the queen that additional instructions be 
issued Cornbury dealing with the question of the provincial 
assembly .^^ 

"Smith, History of New Jersey, 341. "Ibid., Ill, 68. 

»' N. J. Arch., Ill, 54. »» Ibid., Ill, 96. 



NEW JERSEY 143 

This recommendation was favorably acted upon and the 
additional instructions reached Cornbury in the spring of 
ITOS.^** According to these two representatives were to be 
chosen by the inhabitant householders of Perth Amboy and 
two by the freeholders of each of the five counties of East 
Jersey. In the west division two representatives each by the 
inhabitant householders of Burlington and Salem and two 
each by the freeholders of the four counties of West Jersey. 
It will be noted that this divided the province equally, giving 
each division twelve representatives. A definite property 
qualification was restored but was reduced so as to require 
of an elector one hundred acres of land or a personal estate of 
£50 sterling. To be chosen a representative one must have a 
freehold of one thousand acres or a personal estate of £500 
sterling. Nothing, of course, was said regarding the question 
of residence. In view of the insistence of the crown in drawing 
up the framework of the representative system in the province 
it is hard to understand the clause in the above instructions 
which seems to give the assembly a free hand in altering it, 
or at least in suggesting alterations. The clause referred to 
was one which stated that no act affecting the number of 
representatives or the method of their choice should be oper- 
ative except by action of the assembly with royal approval. 
Five years passed before the assembly used the right granted 
by the clause to which reference has just been made. Corn- 
bury had been replaced as royal governor by Lovelace, whose 
instructions on the subject of the assembly read exactly as 
did the additional instructions given Cornbury.*^ The 
assembly which met Lovelace in March, 1709, contained a 
proprietary majority, yet a step forward was taken in an act 
passed June 4, specifying the qualifications of electors and 
representatives. The preamble stated the reason for its 
passage to be that the 

"present Constitution granted and allowed by our 
Sovereign Lady the Queen," 

had been found inconvenient. 

«» N. J. Arch., Ill, 96-98. «' Ibid., Ill, 318. 



144 NEW JERSEY 

Section one defines the qualification of an elector as 

"One Hundred Acres of Land in his own Right or be worth 
Fifty Pounds, current Money of this Province in Real and 
Personal estate." 

In order to be chosen a representative one must have 

"One Thousand Acres of Land in his own Right, or be worth 
Five Hundred Pounds, current Money. 

Sections two and three apportioned the representatives 
among the cities, three in number, and the nine counties into 
which the province had been divided by this date. Section 
four in full reads: 

"And be it further Enacted by the Authority aforesaid, 
That all or every Person or Persons, elected and chosen 
Representatives for the Counties aforesaid, shall be Free- 
holders in that Division for which he or they shall be chosen 
to serve in General Assembly, as aforesaid; and that no Per- 
son who is not a Freeholder shall be capable of electing or 
or being elected, nor of sitting in General Assembly." ^^ 

It will be noted that the principal change made by this act 
was the change of the word "sterling" to the phrase "current 
money of the province" in stating the personal estate re- 
quirements. 

The act of 1709 never before operative for the simple 
reason that it and all the other acts passed at the same session 
disappeared somewhere between the printer in New York 
City and the New Jersey provincial officer whose duty it 
was to send the laws to England. ^^ Whether there was any 
connection between the disappearance of the above act and 
the passage of the one on the same subject the following year 
is not clear. Something, however, led the assembly which met 
Ingoldsby, in November, 1709, to pass a law which laid down a 
strict residential requirement and one which was far reach- 
ing in its effect. This assembly was anti-proprietary, which 
partially or perhaps entirely, accounts for the new law which 
was passed in January, 1710. 

" Acts of General Assembly of New Jersey, 1702-1776, 6-7 (Allinson). 
" N. J. Arch., IV, 45. Suspicion pointed to Bass as having deliberately destroyed the 
acts. 



NEW JERSEY 145 

From the preamble it is plain that the condition calling 
forth this law was one which we have not met in any other 
colony so far in this study. That is, the possibility of a large 
landholder, although a resident of another state, being elected 
to the assembly. The preamble states the problem so con- 
cisely we will quote :** 

"Whereas nothing can conduce more to the Honour, 
Safety and Advantage of this Province, than the Members 
elected to serve in the General Assembly be perfectly ac- 
quainted with the true State and Circumstances of this 
Province; and many Inconveniences may arise by electing 
Persons to serve in the said General Assembly who inhabit in 
another Province, although they may have some Interest or 
Estate in this, but their Concerns lying and being in Some of 
the neighboring Provinces, where they with their Families 
do inhabit, they may thereby be swayed to have greater 
Regard to the Interest of the Province in which they so 
inhabit, than for the Welfare and Prosperity of this. 

"Be it Enacted . . . That ... no Person shall be 
capable of being elected a Representative to serve for any 
City, Town or County, in the General Assembly within this 
Province, who is not inhabiting and usually resident himself, 
and likewise with his Family (if any he hath) the Day of the 
Date of the Writ of Summons, and hath been so Three 
Months before in some City, Town or County of that Division 
in which he shall be elected." 

The next and last section retained the freehold qualification 
for representatives of the act of 1709. 

^ Robert Hunter was appointed governor late in 1709 but 
did not arrive in the province until June, 1710. When his 
instructions were drawn the election act of January, 1710, 
had either not been received in England or else it was ignored, 
probably the former. The portion of the "instructions" 
relating to the assembly was exactly the same as in Lovelace's. 
In a letter which accompanied the instructions the Lords of 
Trade said they had no objection to the act (the Cornbury 
Act of 1704) altering the constitution and regulating the 
election of representatives except it did not contain a definite 
property qualification. In this connection the governor was 

" Acts of General Assembly of New Jersey, 1702-1776, 10-11. 
10 



146 NEW JERSEY 

given the authority to reduce the freehold requirement if after 
reaching the province he felt it to be too high.^^ 

Hunter met his first assembly, which was a proprietary one, 
in December, 1710, and succeeded in getting an act through 
the assembly which conformed more nearly to the royal in- 
structions than did those of 1709 and 1710. The council would 
not agree to the new act, however, so the one of 1710 remained 
the law of the province. In Hunter's letter to the Board of 
Trade, telling of his attempt and failure to get a new election 
act we get some important information from the standpoint 
of this study. It reads in part:*^ 

"The Act for regulating Elections and assertaining the 
Qualifications of the Representatives of this Province. This 
Act tho founded upon and conformable to an Instruction of 
Her Majesty for this Purpose was Rejected, because re- 
pugnant to an Act past in Coll. Ingoldsby's time, which 
act as they themselves owne was made on purpose to exlcude 
Doctor Johnston and Captain Farmer from being Elected; 
These Gentlemen at that time living by chance in the province 
of New York, tho their Estates, which are very valuable, lye 
in the Jerseys, and who have acted very zealously, and 
strenuously for her Majesty's service." 

It seems that when Ingoldsby sent the acts passed by the 
assembly in 1710 to England he did not comment on them as 
each royal governor was supposed to do. So the Lords of 
Trade asked Hunter's opinion on them. He rendered this in 
the same communication referred to above. In regard to the 
election act of 1710 he said: 

"This was levelled particularly against Captaine ffarmer 
and Doctor Johnston men of the best Estates and ability 
in this Province, and who have been very active and usefull 
in Her Majesty's Affairs, and may deprive us of more such 
and is contrary to that Constitution of Assembly appointed 
by Her Majesty upon the surrender & confirmed by all her 
subsequent Instructions, obliging the elected to an actual 
residence, whereas the Instructions mentions no other quali- 
fication but an Estate to a certaine value within the Divi-^ 
sion." ^^ 



«N. J. Arch., IV, 2, II (Note). 

« N. Y. Col. Docs.. V, 201; N. J. Arch. IV. 55. " N. Y. Col. Docs. V. 207. 



NEW JERSEY 147 

While stating his objection to the law in question it is 
significant that Hunter did not recommend its rejection. He 
was having a far more harmonious administration than any 
of his predecessors and though he had scarcely been in the 
province a year he had probably sensed the popular demand for 
a law containing a residential requirement. There is no record 
of royal approval of the election act of 1710 but neither was 
it vetoed. That it was considered the law of the province from 
the date of its passage is shown by its inclusion in the earliest 
collections^ of provincial laws.*^ So we can say that 1710 
marked the end of non-residence representation in New 
Jersey. To close our study of this province it only remains 
to see to what extent non-residence representation was 
practiced during the period from 1703, when the province 
was reunited and 1710 when the non-residence representation 
law was passed. 

During that period five assemblies met, holding eleven 
sessions. In the second assembly, which met in 1704, one of 
the representatives for the eastern division was John Royce^* 
a merchant of New York City,^^ who owned a large tract of 
land on the Raritan. In the third assembly in 1707, Lewis 
Morris and Thomas Farmer both appear as representatives 
for the eastern division. ^^ Morris' legislative record in New 
York we have already noticed in our study of that province- 
Farmer, according to the letter of Governor Hunter already 
quoted, was also a resident of New York. 

Royce and Farmer were both members of the fourth 
assembly, which met in March, 1709.^^ This brings us to the 
fifth assembly, the one which passed the non-residential act. 
The assembly journal does not give the list of members, but 
from the reasons given for the passage of the law we have 
every reason to assume that Farmer and Dr. John Johnstone 
had been returned as representatives. Farmer's residence 
has already been noted but Dr. Johnstone is hard to place. 

«8 Allinson. 

'» The next Election Act in New Jersey in point of time was one in 1725 which abolished 
non-residence voting. (Allinson, p. 69.) 

'"Assembly Journal, 41. " Assembly Journal, 77. 

"Tanner, 310. ^^ Ibid., 157. 



148 NEW JERSEY 

He was a large land owner near Perth Amboy and there 
is evidence that he had lived there prior to this date. On the 
other hand we have Governor Hunter's statement that at the 
time of the passage of the non-residence act he was living in 
New York City. He evidently moved back and forth between 
the two provinces, for he was Mayor of New York City in 
1715, but in 1720 was removed from the Provincial Council in 
New York because for two years he had been a resident of 
New Jersey.^* 

In the study of New Jersey we find very little if any op- 
portunity for the development of non-residence representa- 
tion before we find a law forbidding it. This is accounted for 
by the fact that the province contained no one city which by 
its size and influence dominated its political life, and by the 
further fact that the unit of representation was not the county 
or town but the divisions of which there were only two. 
When the question of non-residence representation does come 
up it presents a phase which is entirely new. It brings us 
face to face with the fact that the great landowning interests 
were not stopped by state lines in their attempt to protect 
their property through membership in the assembly of the 
province where their property lay. And so we find able and 
influential residents of New York City seeking seats in the 
New Jersey Assembly, just as they were constantly represent- 
ing outlying New York Districts in the assembly of that state. 
All of which was strictly conformable to English political 
practice of the time. But New Jersey in thus parting from 
English practice at this early date showed that the influence 
of some political ideas, sown by the Quaker proprietors years 
before, had borne fruit. 

" N. V. Col. Docs., V, 467, 649. 



PENNSYLVANIA 

In our study of New Jersey we noted the tendency of Quaker 
proprietors to let the inhabitants of their province have a 
much more free rein in managing their affairs than did the 
royal governors. We also stated that this freedom resulted 
in a greater democracy in provincial affairs. A study of Penn- 
sylvania ought to show whether such conclusions were 
warranted; for in this province a Quaker proprietor had full 
and undivided authority. 

Penn's authority and property rights in Pennsylvania and 
the territory later known as Delaware rested upon four docu- 
ments. 

(1) Charter from Charles the Second dated March 4, 1681, 
conveying Pennsylvania to Penn. 

(2) Deed of release for province of Pennsylvania from the 
Duke of York, dated August 31, 1682. The general terms of 
this were the same as the charter. Penn's purpose in getting 
this was to preclude any possibility of a later assertion of the 
duke's right. 

(3) Grant of Duke of York to Penn, August 24, 1682, 
conveying to him the town of New Castle (Delaware) and a 
district twelve miles around it. 

(4) Grant from the Duke of York of the same date as (3) 
conveying to Penn a tract of land below New Castle, which 
was later included in the two lower counties of Delaware. ^ 

During its provincial history Pennsylvania had what 
might be called four constitutions. They were: 

(1) The Frame of Government of 1682. 

(2) The Frame of Government of 1683. 

(3) Markham's Frame of Government of 1696. 

(4) Charter of Privileges— 1701.2 

The charter from the king to William Penn gave him the 
authority to call an assembly and to determine its form and the 
qualification of its members. In short, the proprietor was 

» Charter and Laws, 466-467. 

' All these can be found in Pa. Col. Recs., Vol. I and II. 

149 



150 PENNSYLVANIA 

given an absolutely free hand in deciding the form of govern- 
ment of his province. The portion of the charter in which we 
are interested reads : 

"Know ye therefore, that wee reposing speciall trust and 
confidence in the fidelitie, wisdome, justice and provident 
circumspeccon of the said William Penn, . . . Doe grant 
free, full and absolute power, ... to him and his heirs, 
and to his and their deputies, and Lieutenants, ... to 
ordayne, make. Enact and under his and their Scales to 
publish any Lawes whatsoever . . . , according unto their 
best discretions, by and with the advice, assent and ap- 
probacon of the freemen of the said countrey, or the greater 
parte of them, or of their Delegates or Deputies whom for 
the Enacting of said Lawes, when, and as often as need shall 
require.'^ Wee will, that the said William Penn, and his heires, 
shall assemble in such sort and forme as to him and them 
shall seem best.* 

Acting under the authority conferred upon him by the 
charter Penn drew up the first Frame, that of 1682, before he 
left England. It provided for an elective council, something 
not found in any other province or colony. That portion of 
the Frame relating to the council reads : 

"That the freemen of the said province shall, on the 
twentieth day of the twelfth month, . . . , meet and as- 
semble in some fit place, of which timely notice shall be 
before hand given, . . . , and then and there shall choose 
out of themselves seventy-two persons of most note for their 
wisdom, virtue and ability, who shall meet on the tenth day 
of the first month next ensuing, and always be called and act 
as the Provincial Council of the said province." ^ 

It was further provided that after the first year one-third 
of the council should be elected annually and no councilor 
could serve two successive terms. No other qualification or 
restrictions regarding the election of council members was 
mentioned. 

The provision regarding the assembly was : 

' The break in the reading caused by a period at this point breaks the grammatical 
structure of the preceding and following sentences. The evident thought is obtained by 
disregarding the period. 

' Charter and Laws, 83. ' Ibid., 94. 



PENNSYLVANIA 151 

"And to the end that all laws prepared by the governor 
and provincial council aforesaid, may yet have the more full 
concurrence of the freemen of the province, it is declared, 
granted, and confirmed, that at the time and place or places 
for the choice of a Provincial Council as aforesaid, the said 
freemen shall yearly choose members to serve in General 
Assembly as their representatives, not exceeding two hundred 
persons, who shall yearly meet on the twentieth day of the 
second month ... in the capital town, or city of the 
said province." ^ 

A later clause^ provided that for the first year the general 
assembly might consist of all the freemen of the province. 
Provision was also made for the increase in size of it to five 
hundred as the population of the province increased. The 
division of the province into hundreds and counties and the 
apportioning of representatives among them was to be by the 
council and general assembly. All elections under the Frame 
of 1682 were to be by ballot.^ 

A later document dated May 3, 1682, amplified some of the 
provisions of the Frame. ^ It provided that all elections should 
be free and that the council and general assembly should be 
the sole judges of the election of their own members. Every 
freeman was capable of electing or being elected to the 
provincial council or general assembly. The qualifications 
for freemen varied, there being four different requirements: 
(a) Every inhabitant who was, or who should become, the 
owner of one hundred acres of land; (b) Every one who had 
paid his passage, and taken up one hundred acres of land at a 
penny an acre and had cultivated ten acres of it; (c) Every 
servant or bondsman, free from his service, who had taken up 
fifty acres and cultivated twenty of it ; (d) . . . 

. . . "Every inhabitant, artificer, or other resident in the 
said province, that pays scot and lot to the government. . . ."^" 

It will be noticed that while this made freemanship depend 
on ownership, or at least on the paying of taxes, yet it was at 
the same time one of the most liberal extensions of that 



•Charter and Laws, 96. 'Ibid., 98. ^^ Ibid., 99. 

T Ibid., 97. > Ibid., 99. 



152 PENNSYLVANIA 

privilege existing in any colony or province. It is especially 
noticeable that it took into consideration the inhabitant 
already in the province before it came into the possession of 
Penn, and the bond-servant who had completed his term of 
service. 

Penn arrived at Newcastle on October 27, 1682, and on the 
next day took possession of the "lower counties" according to 
the Duke's deed. The next day he proceeded to the main 
province. Soon thereafter he divided it into three counties, 
Bucks, Philadelphia, and Chester. At the same time the 
Delaware territory was divided into the counties of New- 
castle, Kent, and Sussex. ^^ 

Sheriffs and the other officials necessary for conducting 
county business were appointed and on November 18th 
writs were issued to the sheriffs to summon the freeholders of 
their respective counties on the twentieth and to elect "out 
of themselves" seven persons to serve as their representatives 
in a general assembly to be held at Upland (Chester) on 
December fourth. ^^ ^he words "out of themselves" in the 
writs calling this election clearly limited the freemen to the 
choice of residents of their respective counties. 

The assembly met on the appointed day. On the sixth 
the Act of Union annexing the lower counties was passed, and 
also an act naturalizing the citizens of those counties. On 
the next day the proprietor placed before the assembly the 
Frame of Government and the "Written Laws or Constitu- 
tions".^^ The latter consisted of ninety laws proposed by 
Penn, sixty-one of which were later adopted and were known as 

. . . "The Great Law or Body of the Laws of the Province 
of Pennsylvania." 

The second one of these prescribed qualifications for electors 
and for representatives. 

"And be it fully enacted . . . that all officers and per- 
sons commissionated and employed in the service of the 
government in this Province, and all Members and Deputies 
elected to serve in the Assembly thereof, and all that have a 

" Proud, I, 234. •» Hazard, 603. " Charter and Laws. 477. 



PENNSYLVANIA 153 

Right to elect such Deputies, shall be such as profess and 
declare they believe in Jesus Christ to be the son of God, the 
Savior of the world, and that are not Convicted of ill fame, 
or unsober and dishonest Conversation, and that are of 
twenty one years of age at least." ^^ 

The next assembly met in Philadelphia, March 10, 1683. 
The form of writ used in calling the election for this assembly 
has been preserved : 

"I do hereby, in the King's name, empower and require 
thee to summon all the freeholders, in this bailiwick, to meet 
on the 20th day of the next month, at the falls upon Delaware 
river; and that they then and there, elect and chuse out of 
themselves, twelve persons of most note for wisdom and 
integrity, to serve as their delegates, in the provincial council, 
to be held at Philadelphia, the 10th day of the first month 
next; and that thou there declare to the said freeman, that 
they may all personally appear at an Assembly, at the place 
aforesaid, according to the contents of my charter of liberties; 
of which thou art to make me a true and faithful return. 

William Penn. 
To Richard Noble, High Sheriff of 

The County of Bucks; and the other five Sheriffs likewise 
for their several counties." ^^ 

By the terms of this writ the freemen of the counties were 
again restricted in their choice to residents and the size of the 
assembly was increased to seventy-two. When the assembly 
met, however, some of the members brought with them 
petitions^® from their constituents praying that the number 
chosen might constitute both council and assembly, three from 
each county constituting the council and nine from each 
county the assembly. The proprietor agreed to this request 
and the assembly later made the arrangement permanent by 
an Act of Settlement.^^ 

The debate attending the act mentioned above determined 
the proprietor to bring in a new frame of government. The 
very next day at a general meeting of proprietor, council and 

'* Charter and Laws, 108. >' Proud, I, 235. 

" The Petition from Chester County can be found in Hazard, 603. 
" Charter and Laws, 125. 



154 PENNSYLVANIA 

assembly, Penn put the question whether they desired the 
old charter or a new one. 

. . . "They unanimously desired there might be a new one." ^^ 

After many conferences between the proprietor, council, and 
assembly, the new charter (Frame of 1683) was read to a 
joint assembly with impressive ceremonies on April 2, 1683. 
It was then signed by Penn, by each person present, and was 
delivered to a committee of the assembly.^^ 

The new "Frame", or constitution as we have called it, 
made several changes in the political organization of the 
province. The council was to consist of eighteen members, 
three from each county; the assembly of thirty-six, six from 
each county. The council and the house together were to 
constitute the general assembly. The residential qualifica- 
tions for representatives was retained; for the instrument 
provided that the freemen of each county should yearly 

"Choose out of themselves six persons of note for virtue, 
wisdom, and abilities to serve in Assemblie as their Repre- 
sentatives." ^" 

From 1692 to 1695 Penn's authority as proprietor was in 
abeyance and with it the constitution of 1683. Governor 
Fletcher, of New York, was also appointed governor of 
Pennsylvania. His commission ,2^ dated October 21, 1692, 
authorized him to appoint a council not to exceed twelve in 
number. The provisions of his commission regarding the as- 
sembly were those with which we are already familiar in the 
other royal provinces. It authorized him to 

summon and Call General Assemblies of the 
Inhabitants, being ffreeholders, within our said Province, 
according to the usage of our province of New York; And 
that the persons thereupon duly Elected by the major part 
of the freeholders of the respective Counties and places, and 
soe returned . . . sha'l be called and held the Generall 
Assembly of that our said province." ^^ 

'" Pa. Col. Recs., I, 63. " Pa. Col. Recs., I, 352-357. 

" Ibid., I, 72. " Ibid., I, 353. 

" Charter and Laws, 158. 



PENNSYLVANIA 155 

Fletcher lost no time in setting up the royal government in 
Pennsylvania. He arrived in Philadelphia about noon, 
April 26, 1693. By afternoon he had chosen several councilors 
and had asked them to recommend persons qualified for 
judges, sheriffs, and other officials.^^ The next day more 
councilors were chosen, and William Markham was appointed 
lieutenant governor. Fletcher now asked the advice of the 
council as to the number of members which he ought to 
summon as an assembly. Some advised adhering to the 
constitution of the province, the charter as they called it, 
but the governor disregarded this suggestion and on the 
twenty-seventh issued writs for an assembly to meet on 
May 15th. Philadelphia and Newcastle were to have four 
members each; the other counties three each.^^ 

On the first day of the assembly which met according to 
the above writs, opposition developed between it and the 
governor. While this opposition at times took on different 
forms the basis of it is shown by the action of the assembly, 
on the second day of the session. They sent a formal address 
to the governor asking that the 

. . . "Procedure in Legislation may be according to the 
usual Method and Laws of this Government . . . which we 
humbly conceive to be yet in Force. . . ." ^^ 

Fletcher replied in writing the same day that, 

"The Constitution of their Majesties Government, and 
that of Mr. Penn's, are in a direct Opposition one to the other. 
If you will be tenacious in sticking for this, it is a plain 
Demonstration, use what Words you please, that indeed 
you decline the other. 

"Time is very precious to me; I hope you will desist from 
all unnecessary Debates." 

The whole session was one long contest, the assembly demand- 
ing a confirmation of existing laws before it would pass a 
supply bill much desired by the governor. Fletcher finally 
yielded. 

" Pa. Col. Recs., I, 365. 

" Ibid., I, 366. «s Assembly Journal, I, 68. 



156 PENNSYLVANIA 

There was one inheritance from the Fletcher regime, 
however, which was a distinct forward step in the democratic 
government of the province. Prior to 1693 all legislation 
originated in the council. Under Fletcher, with an appointive 
council, was put into operation the plan in vogue in other 
provinces. Having once been given this privilege we will find 
later the assembly would not give it up even after the former 
constitution was again in force. 

Penn's authority in the province was restored in 1694, and 
on August 20th William Markham was appointed governor. 
His commission authorized him to conduct the government 

. . . "according to the laws and usages thereof." 

He interpreted this to mean the Frame of 1683 and issued 
writs for the election of a council and assembly. Almost im- 
mediately upon convening the assembly asserted its right to 
initiate legislation. The council finally agreed and so that 
right of the assembly became a part of the law of the province.^^ 
Markham had much trouble with the assembly over a 
supply bill to aid New York, so he arbitrarily dissolved it. He 
now changed his mind about the meaning of his commission 
and adopted the order of procedure of Fletcher's administra- 
tion. He appointed a council consisting of twelve members 
and issued writs for an assembly to be composed as was the 
assembly which met under Fletcher, namely twenty. The 
assembly immediately upon convening issued a strong 
remonstrance;" at what it declared to be the governor's 
violation of the constitution in his issuance of the writs calling 
the assembly into being.^^ There thus began a contest be- 
tween governor and assembly which resulted in Markham 
submitting some new proposals or, as he called them, 

. . . "some heads of a frame of government." ^^ 

Within four days the assembly completed its consideration 
and approval of these, and a few days later the "Markham's 

" Charter and Laws, 561. " Proud, I, 409. 

" For an excellent statement of Markham's position see Pa. Col. Recs., I, 505. 

=« Pa. Col. Recs., I, 508. 



PENNSYLVANIA 157 

Frame of Government" ^^ as it was later known, became 
the constitution of the province.^^ 

Under this both assembly and council had the power of 
initiating legislation. The members of these two bodies were 
to be chosen annually. The qualifications were set forth in 
the following section which said that the council and as- 
sembly should, 

". . . Consist of two persons out of each of the Counties 
of this government, to serve as the peoples Representatives in 
Council, and of four persons out of each of the said Counties 
to serve as Representatives in Assembly. . . ." 

". . . That no inhabitant of this Province or Terri- 
torities shall have right of electing or being elected as afore- 
said, Unless they be free Denizens of this government and 
are of the age of Twenty one years or upwards and have 
fifty acres of land, ten acres whereof being seated and cleared 
or be otherwise worth fifty pounds lawful money of this 
government Clear estate and have been resident within 
this government for the space of two years next before such 
election." ^^ 

The above quotation shows that this third constitution of 
the province, like its two predecessors, contained a require- 
ment that the representatives of a county must be residents 
of that county, the words "out of each of the said counties" 
being open to no other construction. Then it went still further 
and for the first time established a definite requirement as 
regards the length of required residence in the province before 
one was eligible to the office of councilor or representative. 

Penn returned to the province December 3, 1699, and the 
question at once arose as to what was the fundamental law of 
the province. Some said Markham's Frame, others that the 
proprietor's return brought the Frame of 1683 into operation 
again. Penn's attitude was that the former had served while 
he was absent but that it could not bind him against his own 
act, that is, the Frame of 1683. The council proposed a con- 
sideration of both Frames, keeping what had proven good in 

•» Pa. Col. Recs., I, 48. 

•' Charter and Laws, 245-260; Pa. Col. Recs., I., 509; Assembly Journal, I, 94-97. 

»« Ibid., 246-247. 



158 PENNSYLVANIA 

each. As a result of the joint action of proprietor, council^ 
and assembly, the Charter of Privileges of 1701 was agreed 
upon. The assembly's final action on this was on October 23, 
and a few days later it was signed by the proprietor and thus 
became the fundamental law of the province or the fourth 
constitution.^^ Throughout the eighteenth century until the 
adoption of the Constitution of 1777, this instrument was 
recognized as the constitution of the province.^^ 

The portion of the Charter of 1701 bearing on this study 
reads : 

"For the well governing of this Province and Territories, 
there shall be an Assembly yearly chosen by the Freemen 
thereof, to consist of four Persons out of each County, of 
most Note for Virtue, Wisdom and Ability . . . : Which 
Assembly . . . shall have all other Powers and Privileges 
of an Assembly, according to the Rights of the Freeborn 
Subjects of England, and as is usual in any of the King's 
Plantations in America. 

"And the Qualifications of Electors and Elected, and all 
other Matters and Things relating to Elections of Repre- 
sentatives to serve in Assemblies, tho' not herein particularly 
expressed, shall be and remain as by a Law of this Govern- 
ment, made at Newcastle, in the Year One Thousand Seven 
Hundred, intituled, An Act to ascertain the Number of 
Members of Assembly, and to regulate the Elections." ^^ 

The words "out of each county" in the above, rather than 
"from each county", which we have already seen was the form 
used in New York, show that the residential qualification for 
representatives which had obtained in the province from the 
very first was continued throughout its provincial history. 
The act passed in 1700, to which reference is made in the 
Charter of 1701, went a little more into detail regarding further 
qualifications for electors and representatives. The portion 
of it bearing on this subject reads: 

". . . That there shall be four persons elected yearly 
in each respective county of this province and territories to 

"Assembly Journal, 161. 

" The reason for such a statement is that during this period the provincial laws 
refer specifically to it from time to time as the constitution. 
•'Assembly Journal, I, Part II, 11. 



PENNSYLVANIA 159 

serve as members of assembly. And that no inhabitant of 
this province and territories shall have right of electing or 
being elected . . . , unless he or they be natural or 
native-born subject or subjects of England, or be naturalized 
. . . and unless such persons . . . be of the age of 
twenty-one years or upwards, and be a freeholder 
of this province or territories, and have fifty acres of land or 
more well seated and twelve acres thereof or more cleared 
and improved, or be otherwise worth fifty pounds lawful 
money of this government clear estate, and have been resident 
therein for the space of two years before such election." ^^ 

The above law was disallowed by the Queen in Council in 
1706,^^ but another act with exactly the same title was passed 
by the assembly January 12, 1706. This altered the size of 
the assembly and gave the city of Philadelphia two repre- 
sentatives but stated the qualifications of representatives in 
exactly the same words as the former act.^^ The portion of 
this act which gave Philadelphia representation separate from 
that of its county laid down the requirement that its repre- 
sentatives must be residents of the city.^^ The law of 1706 
met a better fate than its predecessor. It was considered by 
the Queen in Council in October, 1709,*" but was not acted 
upon and became law through lapse of time. 

It should be kept in mind, however, that neither the law of 
1700 nor that of 1706, mentioned above, affected the subject 
with which this study deals and have only been mentioned 
because the former act was referred to as amplifying the terms 
of the constitution which itself contained the residential 
requirement. 

As our study of Pennsylvania comes to a close, we are 
struck by the fact that it is the first province or colony thus 
far in this investigation in which non-residence representation 
was never practiced. It is difficult to find an explanation of 

"Statutes of Pennsylvania (1682-1801), II, 24. 

" Statutes of Pennsylvania, II, Appendix I, Section II. 

'>Ibid., II, 213. 

"Statutes of Pennsylvania, II, 213-214. In this connection it is interesting to note 
that the Pennsylvania constitution of 1 790 forbade a resident of a town entitled to separate 
representation to be elected for the county containing the town and a resident of the- 
county outside the town from representing the town. (Article I, Sec. 3.) 

"Statutes of Pennsylvania (1682-1801), II, 221. 



160 PENNSYLVANIA 

this which is not open to objection. The following is the most 
satisfactory to the writer. Penn was a democrat in every sense 
of the word. This was inevitably so when one of his station 
by birth became a Quaker through choice. He was at the 
same time a keen politician, using that word in its best sense. 
Being thoroughly familiar with English law and English 
practice regarding representation he or any other democrat 
could not fail to see that the practice, which was contrary to 
law, resulted in representation in parliament of property 
rather than of people. In Penn's dealings in America both in 
the Jerseys and in Pennsylvania there is abundant evidence 
that human rights took precedence in his mind over property 
rights. This was true even when it meant that he suffered 
financially because of his attitude on that matter, thus reach- 
ing a plane of practice which few people have reached even to- 
day. 

In the light of the above, he evidently felt in drawing up 
his first Frame of Government that the representatives of the 
people should come from among those whom they represented. 
So a residential qualification was written into the first consti- 
tution of the province and was kept there throughout its 
provincial history, partly perhaps through the influence of the 
Quaker element in Pennsylvania politics, but also because of 
the fact that it is very doubtful if the people of any province 
once experiencing the privilege of this democratic innovation 
would have given it up, except under strong pressure from 
some powerful governmental influence. 



DELAWARE 

The early legislative history of Delaware was so intimately 
connected with that of Pennsylvania that it is needless to 
repeat any portion of the previous chapter prior to the 
Charter of Privileges of 1701. That instrument provided that 
in case the representatives of the "Province and Territories" 
decided within three years not to meet together each might 
have a separate assembly. That of the Lower Counties^ 
was to consist of as many members from each county as the 
people desired.^ In inserting such a provision in the charter, 
Penn evidently foresaw trouble between the two sections of 
the province and took this means of easing what would have 
been, with him absent, an almost intolerable situation. 

In fact, the friction almost resulted in a breaking of rela- 
tions during the very assembly which adopted the Charter. 
The custom had been to hold some of the sessions of the 
assembly at Newcastle in the Lower Counties. The session of 
October, 1700, had been held there. For some reason when the 
assembly met the following October in Philadelphia, one of 
the first items of business was to confirm the laws passed at 
Newcastle the previous year. Upon this being proposed the 
representatives of the Lower Counties withdrew from the 
assembly. 

They stated the reason for their withdrawal to be that if 
all laws enacted at Newcastle had to be re-enacted or con- 
firmed at Philadelphia, then the two parts of the province 
were not equal as the act of union of 1682 had declared them. 
Penn replied that their action in withdrawing grieved him 
very much and that the confirmation of the laws previously 
passed was simply a matter of form to prevent any question 
concerning them arising during his absence.^ The seceding 

• This was the term generally used to designate the territory later called Delaware. 
It was also sometimes called the "Territories". 

» Assembly Journal, Pennsylvania, Part II, p. III. 

' This session was held before the regular time to enable Penn to sail for England to 
defend his title to the province. From his address to the assembly explaining this it is 
clear that he had hoped to spend the remainder of his days in the province. 

11 161 



162 DELAWARE 

members stated that their protest was not against him 
personally but that the union had been burdensome from the 
beginning. The situation thus revealed led Penn, as has 
been said above, to provide in the Charter of Privileges for 
separation, if it could not be avoided. 

One clause of the Charter is supposed to have increased 
the discontent of the Lower Counties. That was the one 
granting the city of Philadelphia two representatives. Here- 
tofore the parts of the province had been equal but in this the 
Lower Counties recognized the first step in the increase of the 
power of the province, while theirs from their very geographical 
location was bound to remain stationary. 

When the assembly of 1702 met there were no representa- 
tives present from the Lower Counties. In fact, none had 
been chosen by them on the regular election day. The as- 
sembly adjourned and word was sent to the Lower Counties 
to send representatives. So an election was held there and 
the representatives chosen came to Philadelphia in November 
but refused to sit with the members from the province. The 
two groups finally met together on November seventeenth. 
On the nineteenth the Council sent a message to the assembly 
asking three questions: 

(1) Are the representatives of the province willing to meet 
with the representatives of the territories to form an assembly? 

(2) Are the representatives of the territories willing to meet 
with the representatives of the province to form an assembly? 

(3) If either refuse what methods do they propose for the 
formation of an assembly?"* 

The members from the province answered "Yes" to the 
first question, but with conditions. The members from the 
Lower Counties answered as follows: 

"The said members finding that they are called here on 
a different foot with those of the upper Counties cannot, if 
there was no other obstacle, join with them in Legislation, 
But are cheerful and willing when warrantably convened to 
proceed in Assembly to answer her majesty's Commands, 
and such other matters of importance as shall then be laid 

<Pa. Col. Recs., II, 81. 



DELAWARE 163 

before them, though they will not presume to direct the 
Government in what methods to convene them, they sup- 
posing it not their business, but that of those who rule over 
them." 5 

The governor was not satisfied with the answer of either 
party, and the next day dissolved the assembly after calling 
to their attention the fact that neither the importance of the 
matters before them nor the ill consequences of separation 
had moved them nearer a decision. 

Up to this point it had been the representatives of the 
Lower Counties which wished to withdraw while those of the 
province had tried to retain them as an integral part of the 
provincial assembly. But now the positions were reversed. 
Just before the assembly was dissolved the members from the 
province presented an address to the governor calling his 
attention to the provisions in the Charter of 1701 for a 
separate assembly for each section in case of disagreement 
and prayed for an assembly for the province to be composed 
of eight members from each county.^ 

Governor Hamilton died soon afterward without taking 
any action on the matter and so when October, 1703, came 
eight members from each county of the province presented 
themselves as the assembly.''^ The council was at a loss, 
what to do but finally recognized them as the assembly. 

John Evans arrived as governor in early February, 1704.. 
His commission appointed him the Proprietor's Lieutenant 
Governor for "Pennsylvania and Counties annexed".^ On 
choosing new members for the council he selected three from 
the Lower Counties. This was part of Evans' deliberate 
program to reunite the province and territories. Soon 
thereafter the governor held a conference at Newcastle with 
some of the leading citizens of the Lower Counties and got 
them to agree to join with members from the province in an 
assembly. So, on his return, writs were prepared for an 
election in the Lower Counties in March, and setting the date 
of the assembly for April 10, 1704. 

6 Pa. Col. Recs., II, 82. 'Assembly Journal, I; Part II, 1. 

^Ihid., II, 83-84. « Pa. Col. Recs., II, 116. 



164 DELAWARE 

The members appearing on that date for the province were 
those chosen the previous October for the regular fall assembly. 
No members appeared for Sussex County, but the other two 
counties of the ' ' territory' ' were represented . Upon assembling 
the members from the province said they desired to address 
the governor and council but not in the presence of "others", 
so the representatives from the two lower counties withdrew. 
The address called attention to the fact that they had been 
chosen under the proprietor's charter and therefore considered 
themselves "A House of themselves".^ The next day all met 
the governor and council together. The governor addressed 
them on the advantages of unity and concord and urged a 
renewal of their joint association despite the steps toward 
separation already taken. ^° 

After two days of conference between the two groups of 
representatives each presented a written address to the 
governor^^ and on the following day they appeared in joint 
session before the governor and council. All the documents 
relating to the matter at issue were read and each side stated 
its case. Briefly it was as follows: 

Province: — That without violating their charter they 
could not recede from the position taken neither lessen nor 
reduce their number. 

Territories: — That they would come into a joint assembly 
on the terms that each county in both sections should be 
represented by four members and no more. 

At the conclusion both sides said : 

"That as things now stand, it would be most suitable 
for each to act distinctly, to which they requested the Gover- 
nor's Concurrence if he should think fitt." ^^ 

Seeing that his efforts to reunite the two parts of the 
province were useless, the governor met the Pennsylvania 
Assembly^^ on the seventeenth and recognized than as properly 
constituted to conduct provincial business. The Delaware 

»Pa. Col. Recs.. II, 126. "Ibid., II, 130, 131. 

^"Ibid.. II, 127-129. "Ibid., II, 132. 

'» Hereafter in referring to the "Territories" or Lower Counties the term Delaware 
will be used. 



DELAWARE 165 

representatives were still in Philadelphia and the governor 
met them at the Bull's Head on the morning of the eighteenth. 
He told them that he would adjourn them to meet at New- 
castle if in the opinion of Judge Monpesson he could legally 
do so. If not he would issue writs for an early election. 

On April twentieth the matter was presented to the council 
and Judge Monpesson gave his opinion that writs for a new 
election had better be issued. This was done ordering the elec- 
tion of four representatives from each county to be elected 
on May twelfth and to meet the governor at Newcastle on the 
twenty-second. At the same meeting the council decreed that 

"Ye Laws made and past by ye Province and annexed 
Counties, in conjunction, were still as much in force upon their 
separation, both in Province and Territories Separately as 
ever." '^ 

The records do not state why the first Delaware Assembly 
did not meet at the time set in the election writs, namely, 
May 22, 1704, but Scharf states that the first assembly met in 
November. Most of the members who had been elected for 
the last joint assembly with Pennsylvania men were returned 
for this one. Scharf also states that a law was passed confirm- 
ing all previous existing laws and one giving each county six 
members in the assembly.^^ No such law as the last one men- 
tioned appears in a compilation of Delaware laws from 1700- 
1797, published at Newcastle in the latter year. Neither has 
any trace been found of it from any other source. 

The first election act passed in Delaware, of which we have 
any record, was in 1734. This was entitled 

. . . "An Act for regulating elections, and ascertaining the 
number of the Members of Assembly." 

This law set the number of representatives at six from each 
county but provided that this number could be increased by 
the assembly at any time. Annual elections of representatives 
at the time and in the manner prescribed by the Charter of 
Privileges were to be held. Qualifications for voting and hold- 
ing ofifice were stated in the following portion of the act. 

1* Pa. Col. Recs., II, 138. » Scharf, I, 129. 



166 DELAWARE 

"Provided always, That no inhabitants of this government 
shall have right of electing or being elected as aforesaid, unless 
he or they be natural born subjects of Great Britain, or be 
naturalized in England, or in this government, or in the 
province of Pennsylvania, and unless such person or persons 
be of the age of twenty-one years or upwards, and be free- 
holder or freeholders in this government, and have fifty acres 
of land or more well settled, and twelve acres thereof cleared 
and improved, or be otherwise with Forty Pounds lawful 
money of this government clear estate, and have been resident 
therein for the space of two years before such election. . . ." ^^ 

As the above was the last legislative act by the Delaware 
Assembly on the general question of electoral qualifications 
prior to the adoption of its Revolutionary constitution this is 
a good place to inquire whether non-residence representation 
was permitted and practiced under the old constitution. 

What was the Delaware constitution prior to the adoption 
of the one of 1776? Evidently the Charter of Privileges 
granted by Penn to the united province in 1701. Proof of 
this is seen in the fact that from the date of separation (1704) 
until 1776 Delaware recognized the authority of the provincial 
governor and council of Pennsylvania. Added proof is that 
the election act of 1734 brought the election practices of the 
province into harmony with the provisions of the Charter of 
Privileges. 

The study of Pennsylvania has shown that the charter 
established a county residential qualification for representa- 
tives. While the act of 1734 quoted above seems only to estab- 
lish a provincial residential qualification, the provisions of the 
charter would, of course, take precedence and govern the 
practice. So there is no doubt that in Delaware as in Penn- 
sylvania non-residence representation of the counties in the 
assembly was prohibited and not practiced during the period 
of independent existence as it had been prohibited and not 
practiced during the period of union. In this connection it 
ought to be said, however, that in case of doubt in the matter 
there is no way of coming to an absolutely certain decision. 

i«Laws of Delaware (1776-1792), I, 148. 



DELAWARE 167 

Under similar circumstances in other provinces recourse has 
been had to a checking of the lists of assembly members; 
but this is impossible in the case of Delaware as the Assembly 
Journal for the whole provincial period is missing.^^ 

The qualifications for representatives in the assembly 
under the Constitution of 1776 are given in the following 
quotations : 

1. "One of the branches of the Legislature shall be called, 
The House of Assembly, and shall consist of seven Repre- 
sentatives, to be chosen for each county annually of such 
persons as are freeholders of the same." ^^ 

"The other branch shall be called. The Council, and 
consist of Nine Members, three to be chosen for each county 
. . . who shall be freeholders of the county for which they 
are chosen. . . ." ^^ 

Here we have the apparent substitution of a freehold 
qualification for the freehold and residence qualification 
which had formerly prevailed. Yet it is hardly reasonable to 
suppose that Delaware at this late date in her provincial de- 
velopment changed a political practice of nearly a hundred 
years. It is more reasonable to assume that the established 
custom was taken for granted and specific reference to it 
omitted because this constitution, like all the Revolutionary 
constitutions, was hastily constructed and was never submitted 
to the people. 

Again in case of doubt, however, we can have no proof one 
way or the other whether non-residence representation was 
practiced under the constitution of 1776, as there are no 
Assembly Records prior to 1791.^" The first constitution of 

" "There being no minutes of Legislative proceedings of such an early period existing 
in the state of Delaware, herein before stiled the territories. The traditional account is 
that all such minutes preceding the year One Thousand Seven Hundred and Twenty-two, 
were destroyed about that time by fire at the burning of Colonel John French's house in 
New Castle, in which it is said they were when that accident happened." 
Note p. 49, Appendix Vol. I, Laws of Delaware, 1706-1797. 

18 Art. 2. Constitution of 1776. 

^^Ibid. Art. 3. 

=1 "Sparks says: 'When the British were in Wilmington, a short time before the 
battle of Brandywine, and when they carried off Pres. McKinly, they also took away the 
public papers and journals belonging to the County of New Castle, pertaining to the old 
government. . . . The President was authorized to take measures to procure them. 
This seems never to have been done'." 
Winsor, VIII, 452. 



168 DELAWARE 

Delaware under her period of statehood was 1792. The 
clause of this which states the qualifications for members of 
the assembly reads: 

"No person shall be a Representative who shall not have 
attained the age of twenty-four years, and have a freehold in 
the county in which he shall be chosen, and been a citizen and 
inhabitant of the state there years next preceding the first 
meeting of the Legislature after his election, and the last 
year of that term an inhabitant of the county in which he 
shall be chosen. . . ." ^^ 

So we find Delaware beginning her career as a state with a 
definite residential qualification for representatives written 
into her constitution. That this is simply the reflection of 
her practice for over a hundred years there can be little doubt. 

"Laws of Delaware (1700-1797). I. XXXII. 



MARYLAND 

The charter granting Maryland to Cecilius Calvert bore date 
of June 20, 1632. It made Calvert the absolute lord of his new 
possession with a single exception and in that exception we 
have the germ of the legislative system of the province. The 
part of the charter bearing on this point reads : 

"We ... do grant unto the said now baron . . . 
free, full and absolute power ... to ordain, make, and 
enact laws of what kind soever, ... of and with the 
advice, assent, and approbation of the free-men of the same 
province, or of the greater part of them, or of their delegates 
or deputies, whom we will shall be called together for the 
framing of laws, when, and as often as need shall require . . . 
and in the form which shall seem best to him or them "^ 

While the above gave Lord Baltimore full authority over 
the assembly of freemen he had no option regarding whether 
or not he should have their cooperation in the government of 
the province. Under the authority granted him he could 
decide the form of the assembly; the unit of representation; 
the number of representatives; length of session; in fact, every 
phase of its organization and constitution was in his hands to 
decide as he wished ; but call such an assembly of freemen he 
must, according to the wording of the charter. It has often 
been pointed out that under a proprietor of different type the 
government of Maryland would have been very oppressive, but 
as it was, after a few skirmishes with the proprietor in the early 
years of the province, the people through their representatives 
in the provincial assembly seem to have won as large a meas- 
ure of self-government as obtained in any colony or province. 

Government in Maryland can be said to have begun 
with the appointment of the governor and two 

. . . "commissioners for the government of the province". 
These officials were appointed by the proprietor in England 

■ Portion of section seven of Charter to Lord Baltimore, June 20, 1632. This can be 
found in Kilty's edition of the Laws of Maryland. 

169 



170 MARYLAND 

before they sailed for Maryland with about three hundred 
colonists in 1634. 

Evidently no time was lost in calling an assembly, for we 
know such a body met in 1635, but there is no record of its 
proceedings. The early carrying out of the charter provision 
leads naturally to a consideration of Baltimore's policy on 
the question of assemblies. Putting it briefly it can be said 
that this policy was to call frequent assemblies, but to control 
their proceedings by retaining the right to initiate legislation 
himself and also the right of determining the number of 
members and how often they should meet. As we shall see 
later, from the first meeting of an assembly of which we have 
any record until the legislature had assumed its permanent 
form these rights of the proprietor were challenged and 
gradually taken from him or yeilded by him, whichever way 
one looks at it. 

The unit of representation in the assembly was originally 
the hundred.^ In the early days of the province there were but 
two counties, St. Marys, including all the western shore, and 
Kent, including Kent Island and the eastern shore. New 
counties and hundreds were created by act of the proprietor 
or by that of governor and council acting with his approval. 
As population increased the two original counties were in- 
evitably sub-divided into several counties as fast as con- 
ditions demanded it. In 1654, under the Puritan Com- 
missioners, the county was made the unit of representation 
in the assembly and this was retained after the restoration of 
the proprietor's authority in 1658. 

The earliest assembly of which we have a record is one 
which met in January, 1638. In calling this both personal 
writs and writs of election were used. The former is something 
with which we have not met in any other colony or province 
so far in this study. By means of a personal writ the governor 
could summon whomsoever he pleased to be a member of the 
assembly without the one summoned having to trust his 

2 Archives, Council (1636-1667), 59, 70, 89, 91. 
Archives, Assembly (1637-8 — 1664), 2, 87, et. seq. 



MARYLAND 171 

■chances at the election of delegates.^ One of the election writs 
for this assembly has fortunately been preserved. It is the 
one to Captain Evelyn, commander of Kent County. He 
was directed to be present at a 

. . . "g[ene]ral assembly of all the freemen of this Province 
to be held at his town of St. Maries on the five and twentieth 
day of January next." ^ 

The writ stated that it was issued at the direction of the 
proprietor. Within six days Evelyn was to publish the 
proclamation to all the inhabitants of Kent Island and was 
to persuade them to come in person to the assembly. Those 
who could not come were to select 

"such and so many persons as they or the maior part of 
them . . . shall agree upon to be the deputies or burgesses 
for the said freemen." 

When this assembly met it was composed of officials 
(councilors and high constables) and twenty-one freemen. 
Of the latter twenty were registered as planters or gentle- 
men, and one as a carpenter. Not a single burgess or delegate 
appeared. Many freemen had given others their proxies, 
but these were practically all held by officials.^ The roll of the 
assembly was never closed and practically every day witnessed 
the addition of new members. 

This session considered some laws submitted by Lord 
Baltimore but rejected them.^ On February 8, Lionel Calvert, 
governor of the province, or lieutenant-general as he was more 
frequently called, prorogued the assembly until February 26. 
The reason given was to enable a committee, which was 
drafting some laws to be submitted to Lord Baltimore, to have 
a chance to do its work. The meeting of the assembly was 
postponed until March fifth. On the sixteenth, after several 
days consideration, fourteen laws were passed.'^ The details 
of these we do not know, but one of them was "touching 

' In the Maryland Records we find the words burgess, delegate, deputy, used inter- 
changeably. The term delegate came to be the one most commonly used, however, al- 
though "burgess" was more commonly used in the early days of the province. 

* Archives, Assembly (1637-8—1664), I. ^ Ibid. (1637-8—1664), 9. 

^Ibid., (1637-8—1664), 2-4. ■'Ibid. (1637-8—1664), 21. 



172 MARYLAND 

g[ene]rall Assemblies".^ The above acts were all rejected by 
the proprietor^ probably because the passage of them in- 
fringed on his right to originate legislation. 

The next assembly was held the following February, that 
is, 1639. This was largely a representative body rather than 
a primary one as the first^'' assembly had been. The reason for 
this was the form of an election writ. The one sent to the 
freemen of Mattapanient hundred read: 

"Caecilius Lord Proprietary to our trusty Richard Garnett 
Senior Richard Lusthead Anum Benum Henry Bishop Joseph 
Edlo Lewis Freeman and any other the Freemen inhabiting 
at Mattapanient Greeting whereas we have appointed to hold 
a General Assembly of the Freemen of our Province at our Fort 
of St. Marys On the five and twentieth day of this instant 
month of February these are therefore to will and require 
you that tomorrow or that on thursday next at the furthest 
. . . you and every one of you . . . make such nomina- 
tion and Election of your Burgesses for that manor or division 
at Mattapanient for this next Assembly as you shall think fitt 
hereof fail not at your Perill." ^^ 

As has been said the assembly which met in response to 
the above form of writ was largely representative. In- 
dividual writs were issued to only three men in addition to the 
councilors. This assembly passed an act entitled : 

"An Act for establishing the House of Assembly, and the 
Laws to be made therein. . . . The several Persons elected 
and returned (pursuant to the writs issued) shall be called 
Burgesses, and supply the Place of all the Freemen consenting 
to such Election . . . ; And that the Gentlemen summoned 
by his Lordship's special Writ, to each of them directed, the 
said Burgesses, and such other Freemen who have not con- 
sented to any of the Elections as aforesaid, as shall be at any 
Time assembled, or any Twelve or more of them (whereof the 
Lieut. General and Secretary to be always Two) shall be called 
the House of Assembly." ^^ 

Later in the same session on March 19, 



'Archives, Assembly (1637-8—1664). 15. 

s Bozman, II, 67. 

>" The word "first" is used to mean the first assembly of record. 

" Archives, Assembly (1637-8—1664), 28. 

"Laws of Maryland (1638 O. S.), Bacon Edition. This act reads a trifle differently 
in the Assembly Journal but the meaning is the same. Archives, Assembly (1637-8 — 1664), 
82-83. 



MARYLAND 173 

. . . "An Act ordaining certain Laws for the government of 
this Province" 

was passed. Item fourteen of this reads: 

"The Lieut. General and Secretary (or his Deputy) and 
Gentlemen summoned by special Writ, and one or two 
Burgesses out of every Hundred (at the choice of the Freemen) 
at any Time hereafter assembled, shall be judged a General 
Assembly." ^^ 

To find that both the first and second assemblies were so 
eager to give definite form to their constitution is evidence 
enough that the freemen of Maryland, like those in all the 
other colonies, felt that their rights as Englishmen could only 
be safeguarded by an independent legislative body of their own 
choosing. If this eagerness, on the part of the Maryland 
provincials, shown by the laws passed in 1638 and 1639, 
surprises us ; we have a still greater surprise in store when we 
consider two laws proposed at this session which did not pass 
because of the governor's opposition. One of these, an act 
stating what persons should constitute the general assembly, 
seems clearly to have limited the privilege of voting to actual 
residents within each hundred. It stated that the assembly 
should consist of all council members; those summoned by 
the governor's special writ; the lord of each manor in the 
province and freemen representing each hundred. The latter 
were to be chosen as follows: 

". . . the Sheriff of the County shall within every hundred 
summon all the Freemen Inhabiting within every hundred 
. . . to Assemble at a certain place and time to be by him 
appointed and prefixed which freemen so Assembled (or the 
major part of them) shall Elect and chuse some one, two or 
more able and Sufficient men for the hundred (as the said 
Freemen or the major part of them so assembled shall think 
good) to come to every such General Assembly." ^* 

The other act was one providing for triennial assemblies, ^^ 
with the provision that the freemen assembled therein were 

»«Laws of Maryland (1638 O. S.), Bacon Edition. 

"Archives, Assembly (1637-8 — 1664), 74-75. This would also have made the as- 
sembly a representative rather than a primary legislative body. 

" It should be noted that this was one year previous to the Parliamentary Triennial 
Election Act. The Maryland Assembly passed another Triennial Act in 1642 which was 
vetoed by the governor (Archives, Assembly, 1637-8 — 1664, 130), but triennal assemblies 
were finally obtained in October, 1654 (Archives, Assembly, 1637-8 — 1664, 341). 



174 



MARYLAND 



"to have the like Power, Privilege, Authority and Jurisdic- 
tion, in Causes and Matters arising in this Province, as the 
House of Commons in England have had, used or enjoyed." ^^ 

From 1639 to 1650 the assembly fluctuated between a 
primary and a representative body while a few members 
attended on personal writs. During this period it con- 
tained four classes of members: (1) Delegates; (2) Per- 
sonally summoned ; (3) Freemen ; (4) Proxies. This variation 
can be best shown perhaps by giving the wording of the 
governor's election proclamations for the above-mentioned 
period 'P 



January, 1642. . 

July, 1642 

August, 1642.. . 
December, 1642 
March, 1643. . . 
November, 1644 
December, 1647 



'burgesses' 

'Burgesses' 

'freemen or Deputies' 

'freemen or proxies' 

'freemen only' 

'freemen, proxies or burgesses' 

'freemen, proxies or burgesses' ^^ 



The year 1650 presents such a distinct step in the develop- 
ment of the legislature in Maryland that the assembly of that 
year should be noted at length. Governor Stone, the first 
Protestant governor of the province, issued an election procla- 
mation in January. It read in part: 

"Whereas the manner of summoning Assemblies within 
this province is wholly left to L[or]d Propr[ietor]s discretion, 
these are therefore in his L[ordshi]ps name and according to 
his direction to will and requyre you without delay to give 
Notice to all the ffreemen of St Maries County that they are 
to appear p[er]sonally att St. Maries the 2d day of Aprill next 
or ells by their proxies or Delegates, soe as noe one ffreeman 
soe appearing have above 2 proxies, besides his owne voyce, 
or that forthwith after such notice, the freemen of every 
hundred within the said County make choyce of Burgesses 
within every such hundred in manner following. Viz. That 
all the ffreemen of St. Clements hundred or the maior part of 

"Archives, Assembly (1637-8 — 1664), 74-75. 

1' During this period Maryland came near having a woman in the assembly. In 
1648 Mrs. Margaret Brent as administrator of the estate of the deceased governor, Lionel 
Calvert, claimed the right to cast two votes in the assembly. (Archives, Assembly, 1637-8- 
—1664, 215.) 

i» Archives, Assembly (1637-8—1664), 114, 128, 167, 201, 213. 



MARYLAND 175 

them, make choyce of one of the ffreemen of the said hundred 
for their Burgesse." ^^ 

(Then followed an enumeration of the hundreds of the 
county and the number of burgesses they might choose: 
namely, Newtowne — two or three; St. Georges — one or two; 
St. Marie:. — one; St. Inigoes — one or two; St. Michaells — 
one or two. In each case the specific provision was contained 
that the freeman or freemen chosen be "of that hundred". 
The proclamation closed with the paragraph:) 

"Provided that the freemen of every of the said hundred 
or the maior part of them respectively doe agree together, in 
one of the two wayes of Assembling themselves last mentioned. 
Or otherwise they are all of them hereby requyred to appeare 
personally (and not by their Proxies, or Delegates or Burgesses) 
att the time and place, and for the purpose before expressed." 

It will be noticed that the above gave the people of Mary- 
land the choice between a primary and a representative 
assembly. All the hundreds showed their preference for the 
representative system by choosing delegates. After this date 
the assembly remained a representative body. When the 
assembly met it promptly organized itself into two houses and 
passed an act confirming that arrangement. So 1650 is not 
only the date of the permanent establishment of a representa- 
tive assembly in Maryland but it is also the date of the be- 
ginning of a bicameral legislature.^*' Whether there is any 
connection between the above facts and the fact that 1650 
marked the beginning of Protestant rule in the province is a 
question the answer to which would probably be determined 
by the political and religious background of the one answer- 
ing it.^^ 

After the establishment of a bicameral legislature the 
Upper House, as it was called, became the supporter of 
proprietary and royal interests while the Lower House stood 
firmly for the rights and privileges of the people. The history 
of future legislation in the province is largely a history of the 
contest between the two Houses. 

i« Archives, Assembly (1637-8 — 1664), 259. 

2" In Maryland, as in the other provinces, the councilors constituted the upper house. 

" The assembly of 1650 was the first one in which the Puritan settlement of Providence- 
(Annapolis) was represented. Some Catholic members refused to take the required oath 
because they interpreted it as forbidding them to tell even their confessor what transpired 
in the assembly. 



176 MARYLAND 

About the only questions the constitution of the Lower 
House left unsettled at this date (1650) were the number of 
members to be chosen by or from each election unit and the 
required qualifications for ones so chosen. As both matters 
were always mentioned in the election writs or election 
proclamations, we will quote from these in chronological 
order until a definite and fully accepted policy was arrived at. 

In February, 1661, a writ was issued to the sheriffs of 
each county requiring them to 

. . . "cause to be elected such and soe many discreete 
men as you shall think fit to serve as Burgesses in the said 
Assembly." ^^ 

By this time there were six counties^^ in Maryland, and in 
response to the above writ, two, St. Marys and Calvert, sent 
four burgesses while the other counties sent two each. The 
next year the proclamation to the sheriffs calling an assembly 
contained these words : 

". . . att the discretion of the Freemen of your County 
you cause one two three or foure discreete Burgesses to be 
elected to serve in the said Assembly. . . ." ^^ 

The change in the wording, in one particular, of these two 
documents, issued in consecutive years, summoning an as- 
sembly is due to the fact that when the assembly of 1661 met 
the lower house promptly sent a grievance committee to 
the governor and council asking for an interpretation of the 
writ summoning them. Their objection was that it seemed to 
leave the number of members to be chosen by each county to 
the discretion of the sheriff of the county. The governor and 
council replied that while the writ did seem to be open to that 
interpretation their thought was that the sheriff's power only 
extended to preventing the election of anyone disabled by law, 
while the "determinacon of the number and of the the persons 
to be Elected" was left to the freemen.^^ 



"Archives, Assembly (1637-8—1664). 395. 

" St. Marys, Charles, Calvert, Anne Arundel, Kent, Baltimore. 

» Archives, Assembly (1637-8 — 1664), 425. 

"Ibid. (1637-8—1664), 398. 



MARYLAND 177 

Between the years 1666 and 1670 the feeling between the 
lower house on the one hand, and the governor and upper 
house on the other became very bitter. The governor was 
especially displeased with the attitude of the lower house in 

1669. So when the election writs were issued in December, 

1670, they differed materially from what had been customary. 
A new qualification both for electors and burgesses was laid 
down by the following words : 

". . . thereby giving notice to all freemen of your said 
County who are within the said County Visible seated Plan- 
tations of fifty Acres of Land at the least or Visible personal 
Estates to the Value of fifty Pounds Sterling at the least re- 
quiring them to appear . . . and to elect and choose four 
several sufficient freemen of your said County. . . ." ^^ 

Then follows a statement of property qualifications similar 
to that for the electors. This was the first appearance of a 
property qualification for electors and burgesses. 

The next law on the subject of representation came in the 
year 1678.^^ This was a comprehensive act. It stated the 
need of wholesome laws and that such laws could only be 
established by the 

. . . "Consent of the freemen of this Province by their 
severall delegates and representatives by them freely nom- 
inated, chosen and Elected." 

It further stated that the political practices of the assembly 
ought to follow as nearly as possible the proceedings of 
Parliament. It provided representation for cities and coun- 
ties, still unformed, as soon as they should be created. Ordin- 
ary-keepers and sheriffs were disqualified from serving as 
delegates. The form of writ to be sent to each sheriff was 
given in the law. By it he was to call together at least four 
commissioners of the county and they with the clerk were to 
make proclamation thereby 

. . . "giveing notice to all the freemen of your said County 
who have within your said County a freehold of fifty Acres 

" Proceedings of the Council (1667—1687-88), 77-78. 
"Archives, Assembly (1678-1683), 60-63. 
12 



178 MARYLAND 

of Land or a visible personall Estate of forty pounds starling 
att least Requiring them to appear att the next County 
Court ... at which time . . . the said freemen . . . 
are hereby Authorized and Required to Elect and Chuse four 
severall and Sufficient freemen of your County each of them 
haveing a freehold of fifty Acres of land or a visible personall 
estate of fifty pounds starling att least within your County." ^^ 

The governor seems to have taken no action in regard to 
the law until 1681 when he vetoed it.^^ He gave as his reason 
that it was too great a burden on each county to send four 
delegates to the assembly. Evidently realizing that there 
was a demand in the province for a more definite understand- 
ing on the question as to the constitution of the assembly he 
issued a proclamation dated September 6, 1681, reminding 
all the freemen of Maryland that the charter to the pro- 
prietor empowered him to call assemblies in whatsoever form 
he wished. It continued that: 

"the forme of Assembling the said ffreemen their 
Delegates and Deputyes hath hitherto been altogether un- 
certain from the very beginning of the Seateing of this Prov- 
ince. '^" 

So 

. . . "fifor the setteling therefore of the mindes of the ffree- 
men and Establishing a certainty for the future" 

definite rules were laid down. The form of writ con- 
tained in the proclamation does not differ a word from that 
contained in the law of 1678 except that only two deputies 
were to be chosen in each county. 

The assembly elected under this writ met in October, 1682. 
On November second a lengthy address was sent to the 
governor by the Lower House calling his attention to the fact 
that his wishes regarding the number of delegates had been 
obeyed but that their constituents wished their former 
privilege of sending four delegates restored. They then 
presented a proposal which they hoped would 

"Archives, Assembly (1678-1683), 61-62. 
"Archives, Council (1671-1681), 378-379. 
'olbid. (1681—1685-6), 15. 



MARYLAND 179 

. . . "fully comply with your Lordship's good intentions 
and Satisfie the Minds and Desire of the People." ^^ 

The proposal was that a law be passed that in the future 
all election writs 

. . . "may go out for the Electing of Two three or four 
Delegates for each County at the Choice of the Freemen 
thereof." 

A bill embodying these desires was sent to the Upper 
House. In recognizing its receipt this branch of the assembly 
upheld the governor's right to settle the matter in question, 
but went on to say that if it was done by legislative act it 
must be by action of both Houses 

. . . "who legally Represent the Freemen of this Province. "^^ 

This was on November fourth, and it led to a resolution in the 
Lower House on the seventh which declared without a dis- 
senting vote that 

. . . "the Deputies and Delegates Chosen by the Freemen 
of this Province in a General Assembly are the only Repre- 
sentative Body of the Freemen of this Province." ^^ 

It also contained the declaration that the public ought not to 
be called upon to bear the expense of the Upper House. 

In his reply the governor denied the request of the Lower 
House, stating that it would be as 

. . . "inconvenient for the Freemen to accept as it may be 
dangerous for me to Grant." 

He called their attention to the fact that he was only exercising 
powers granted him by the charter and probably got to the 
heart of the matter in this sentence : 

". . . it would be as reasonable for me to give away my 
Power of Calling and Dissolving of Assemblies, as to give 
that of Choosing the Number of Delegates, and such Persons 
as think much I should hold my Power in the latter would 
not long be Satisfied afore they requested the power from me 
of the former." ^* 



" Archives, Assembly (1678-1683), 346. ^'Ibid. (1678-1683), 373. 
"Ibid. (1678-1683), 354. >< Ibid. (1678-1683). 355. 



180 MARYLAND 

The next year the Lower House passed another act re- 
garding "Electing and Summoning Burgesses", but we know 
nothing of its details as it was not accepted by the Upper 
House.^^ The latter body in turn prepared a bill which was 
just as unacceptable to the Lower House.^^ 

Here the dispute between the two houses seems to have 
rested until 1692 when an election act was finally passed. 
As usual this act contained the form of writ to be issued to 
each sheriff. According to its terms the sheriff of each county 
was required at specified times to give 

". . . notice to all the freemen of your said County 
who have within your said County a freehold of fifty Acres 
of Land or a Visible Estate of forty pounds Sterling at the 
least requiring them ... to Elect and choose four severall 
and sufficient freemen of your County, each of them having a 
freehold of fifty Acres of Land or of Visible personall Estate 
of forty Pounds sterling at the least within your County. . ."^^ 

Later in the act the right of St. Marys to be represented by 
"Two Cittizens"^^ was confirmed. Provision was also made 
for new counties and new cities. Upon the calling of the first 
assembly after the erection of any such county or city the 
sheriff of the county or the mayor recorder of the city was 

. . . "to cause four freemen of the said county and two 
freemen of the said City and Borough, qualified as in the said 

Writ . . . ,"•■'« 

to serve as delegates in the general assembly. 

The next election act was passed in 1704.'*° It differs in no 
essential point from the one of 1692. This act was repealed 
by another one passed in December, 1708.^^ This differed 
little in essential details from the laws of 1698 to 1704. It 
did provide, however, that election writs should be issued 
forty days before the meeting of the assembly. Also in re- 
ferring to the four freemen to be chosen this phrase occurs, 

"Archives, Assembly (1678-1683), 535. " Ihid. (1684-1692), 542. 

*^lbid. (1678-1683), 581. ^^ Ibid. (1684-1692), 543. 

"Ibid. (1684-1692), 544. 

*" Ibid. (1704-1706), 294-297. During this year a Residential Act affecting provincial 
officials was passed. It provided that no office of trust or profit should be open to anyone 
who had not resided in the province three years. (Archives, Assembly, 1700-1704, 429- 
430.) 

<'/6»J. (1707-1710), 352-353. 



MARYLAND 181 

. . . "whether the parties so elected be present or absent." 

The next legislative act bearing on this subject was in 1708, 
when Annapolis, which had now become the capital of the 
province, was granted representation. We have already seen 
that St. Marys was granted the privilege of sending "Two 
citizens" to the assembly in 1692. The removal of the 
capital to Annapolis had evidently resulted in the decay of 
St. Marys, for its privilege of being represented was now with- 
drawn and the privilege of representation in the assembly was 
extended to Annapolis in the following words: 

"Then it was proposed whether It may not be proper to 
erect this Town and port of Annapolis into a City with the 
Privilege of sending two Citizens to the Genii Assembly." *^ 

This was agreed to, Annapolis being 

. . "the Seate of Government and a growing place." 

The last election act passed by the provincial assembly was 
in 1715. In general form it was similar to its predecessors 
but differed materially from them in containing the word 
"residents" and using it in such a manner as to leave doubt 
whether non-residence representation was permitted. As was 
customary the act contained the form of election writ to be 
used. The portion of the writ bearing on this study reads: 

". . . thereby giving Notice to all the Freemen of your 
said County, who have within the said County a Free-hold of 
Fifty Acres of Land, or who shall be Residents, and have a 
visible Estate of Forty Pounds Sterling at the least thereby 
requiring them ... to elect and choose Four several and 
sufficient Freemen of your County, each of them having a 
Freehold of Fifty Acres of Land, or who shall be a Resident, 
and have a visible Estate of Forty Pounds Sterling at the 
least, within your County, whether the Parties so elected be 
present or absent " ^^ 

The wording of the above act as found in the Archives 
(Assembly) differs in an important particular, in respect to 
the subject of this study, from the law as it appears in Bacon's 

"Archives, Council (1698-1731), 249. 

"Laws of Maryland, Bacon Edition (1716), Chap. XI, Sec. Ill; Archives, Assembly 
(1715-1716), 270-274. 



182 MARYLAND 

Edition of the Laws of Maryland. In the Archives the writ 
reads in part: 

"Giving notice to all the freemen of your said County who 
have within the said County a ffreehold of ffifty Acres of Land 
who shall be residents or have a Visible Estate of forty pounds 
Sterling at the Least." ^^ 

If the latter wording is correct a residential qualification for 
delegates or representatives is plainly established, but if the 
wording in Bacon is correct there is a possibility that non- 
residence representation was permitted. 

A rereading of the Act of 1715 as well as of those which 
preceded it will show that whether non-residence representa- 
tion was permitted under Maryland law depends entirely 
upon the content and meaning of the word freemen. Prior to 
1650, when the unit of representation was the hundred, there 
is no doubt that voting within each hundred was limited to 
actual residents and that one chosen to represent them must 
be a resident.**^ 

Between 1650 and 1670 the wording of the writs is such 
that there is no clue as to the practice followed. But with the 
initiation of a property qualification for suffrage, in 1670, 
we at once meet the problem whether as in the case of most 
of the other colonies and provinces the ownership of land in a 
Maryland county made one a freeman of that county. Gamb- 
rall in his Early Maryland takes the position that in the early 
days of the province the word "freeman" meant every man 
not a servant or slave. Thus with manhood suffrage the man 
who was an indebted servant yesterday might be the legis- 
lator of to-morrow.^^ Bozman, on the other hand, assumes 
that the word "freemen" was synonymous with "freeholder".'*^ 

But on this point we have a very definite answer in a 
matter which arose in the assembly of 1642. The summons 
calling that assembly was directed to all . . . 

. . . "freemen inhabiting within the Province to be at the 
said Assembly . . . either by themselves or their Deputies 
or Delegates." ^^ 

"Archives. Assembly (1715-1716), 271. 

« Note the reading of the Election Act of 1639 and the Election Proclamation of 1650. 

«• Gambrall, 84. " Bozman, II, 47. »« Archives, Assembly (1637-8 — 1664). 167. 



MARYLAND 183 

When the assembly met the first item of business was this: 

"Mr, Thomas Weston being called pleaded he was no freeman 
because he had no land nor certain dwelling here, etc., but 
being put to the question it was voted that he was a Freeman 
and as such bound to his appearance by himself or proxie, 
whereupon he took place in the house." ^^ 

So it seems quite clear that according to Maryland usage 
freeman and inhabitant were synonymous terms. But after 
1670 the privilege of holding office and of voting was restricted 
to freemen who were also freeholders. If the ownership of an 
estate in a county made the said owner a freeman of that 
county regardless of his place of residence, as it did for ex- 
ample in New York, then he could both vote in that county 
and be elected to represent it in the assembly. 

Prior to 1715 it seems quite clear that the privilege of 
voting and being elected to office in the county was restricted 
to residents ; in other words that ownership of land in a county 
carried with it no political privileges unless one resided there. 
But the very wording of the law of 1715, "having a freehold 
or a resident", raises a doubt in regard to the matter which in 
the absence of any authoritative statement regarding it can 
only be settled by finding out whether any Maryland county 
was ever represented by a non-resident. 

The lists of assembly members from 1650 to 1732 (which 
is as late as the assembly records have them published) 
have been carefully examined and checked. Not a single case 
of non-residence representation appears. There are a few 
instances in the records which at first consideration might 
look like non-residence representation but every one can be 
satisfactorily explained. For example, John Salter appears 
as a delegate for Kent County in 1701 and 1704; for Prince 
George in September, 1708; and for Queen Anne's in Decem- 
ber, 1708 and 1709.^^^ Salter was a resident of both Kent 
and Queen Anne's counties at the time he represented each.^^ 
In all probability he lived in that part of Kent which went 
into the new county of Queen Anne's when it was formed in 

"Archives, Assembly (1637-8 — 1664), 170. 

'» lUi. (1700-1704), 128, 356; lUd. (1707-1710), 202. 267, 410. 

" Hanson, 348; Baldwin, IV, 36. 



184 MARYLAND 

1706. Listing Salter as a delegate for Prince George in 
September, 1708, is a clerical error. At this same session 
Major James Smallwood, who represented Charles County 
continuously from 1693 to 1713, appears for Cecil County .^^ 
The error regarding both Smallwood and Salter is clearly 
shown by a report^^ of the Committee of Elections which was 
presented a few days after the opening of the session. 

Some other instances where we find the same man appear- 
ing at different times for different counties can all be accounted 
for by the division of the old counties to form new ones, a 
process which automatically changed the legal residence of 
many people. 

The only form of non-residence representation ever 
practiced in Maryland was during the period in which free- 
men were allowed to choose proxies to represent them in the 
assembly which at the time was a primary body. Speaking 
of the first assembly, Steiner says, 

"Proxies, however, paid no regard to hundred lines; but 
one man might hold proxies from all three hundreds." ^* 

At the end of the provincial period we find Maryland 
writing her political practice regarding representation into 
her first constitution, that of 1776: 

"That the legislature consist of two distinct branches, a 
senate, and a house of delegates, which shall be styled The 
General Assembly of Maryland. 

"That the house of delegates shall be chosen in the follow- 
ing manner: All free men, above twenty-one years of age, 
having a freehold of fifty acres of land in the county in which 
they offer to vote, and residing therein, and all free men, 
having property in this state above the value of thirty pounds 
current money, and having resided in the county in which they 
offer to vote one whole year next preceding the election, shall 
have a right of suffrage in the election of delegates for such 
county." ^^ 

Electors so qualified were to elect annually by viva voce vote 

"Archives, Assembly (1707-1710), 202. 
" Ibid. (1707-1710), 208-209. " Steiner, 76. 

"Section II, Constitution of 1776. Section 14 also provided a residential qualifica- 
tion for senators. 



MARYLAND 185 

"four delegates for their respective counties, of the most wise, 
sensible and discreet of the people, residents in the county 
where they are to be chosen one whole year next preceding the 
election, above twenty-one years of age, and having in the 
state real or personal property above the value of five hundred 
pounds current money." 

Strange as it may seem the only instance in Maryland 
history where ownership of land carried with it the privilege 
of voting was provided for in this constitution. Referring to 
Annapolis, it declared 

. . . "but the inhabitants of the said city shall not be en- 
titled to vote for delegates for Anne-Arundel county, unless 
they have a freehold of fifty acres of land in the county, dis- 
tinct from the city." ^^ 

This, of course, was no violation of the county residential 
clause in the same instrument. 

Why one rule should have been applied to Annapolis and a 
different one to Baltimore is hard to understand. Section six 
of the constitution of 1776 specifically confined representation 
of that city to residents and further provided that they could 
not vote in nor represent the county. 

In Maryland as in Pennsylvania, where the people were 
allowed to determine the qualifications of their representa- 
tives without pressure from either proprietor or crown, we 
find that they did the logical and natural thing, that is, chose 
men as their representatives whose chief interest, through 
residence, lay within their election unit. 

"Section IV, Constitution of 1776. Even this form of non-residence voting came 
to an end in 1799. 



VIRGINIA 

One approaches a study of Virginia with an attitude in- 
stinctively different from that in the case of any other colony. 
A certain distinction characterizes the legislative beginnings 
of this colony. "The first representative body in America" 
is a phrase which to all minds calls up at once the House of 
Burgesses of 1619. 

In no other colony is there found such a diversity of forms 
of representation as was the case in Virginia in the successive 
periods of its history. Chandler calls attention to this^ 
and part of the list as he gives it follows: 

(1) Representation by settlements or plantations with no 
definite number of representatives from each settlement. 

(2) Parish and county representation without a fixed 
number of delegates from either the parishes or counties. 

(3) Representation by counties only, two representatives 
from each county, neither more nor less, whether the counties 
were large or small. 

(4) Representation to the College of William and Mary 
in accordance with the English custom of allowing repre- 
sentation to the universities. 

(5) Borough representation, granted by the town charters, 
or by an act of the general assembly. 

While representative government developed early in 
Virginia there was no hint of it in any of the first three charters. 
The charter of 1606 did not grant powers of government to the 
London Company, The settlement at Jamestown was simply 
a plantation owned by the company. The colonists were 
servants of the company.^ There was no private property 
and little liberty. The immediate source of authority in the 
province was a council of residents appointed by the Council 
of Virginia, in England, which in turn was appointed by the 
crown. 

The charter of 1609 made the London Company a joint 
stock company and gave it governmental powers. It brought 

' Representation in Virginia, 5. ' Osgood, I, 34. 

186 



VIRGINIA 187 

no liberties to the planters but the corporation gained many.^ 
Under this charter the colonists were ruled by a strict code of 
laws drawn up in England. 

About the only change made by the charter of 1612 was 
that by this instrument the company gained the right to 
elect the council, a function formerly exercised by the king. 
So by this time the company had full authority in the prov- 
ince.^ 

The next date of importance in Virginia history is 1618 
at which time the affairs of the London Company passed into 
the control of the Sandys-Southampton party. This group 
was interested in increasing the number of inhabitants of the 
colony and in bringing about private ownership of the land, 
in contrast to the common ownership of the earliest days and 
to the system of manors or "associations of planters" which 
was the form private ownership first took when permitted 
at all. 

Evidently the controlling faction of the London Company 
felt that one of the best ways to accomplish its purpose was 
to let the colonists share the responsibility of the government. 
So when Sir George Yeardley was appointed governor in 1618 
his commission is supposed to have authorized him to call an 
assembly. As the commission has never been found, the only 
contemporary account we have is in a "Declaration by the 
Ancient Planters'-. This reads in part: 

". . . that they might have a hand in the governinge 
of themselves, it was granted that a general assemblie should 
be helde yearly once, whereat were to be present the Gov'r 
and Counsell, with two Burgesses from each plantation freely 
to be elected by the inhabitants thereof; this Assembly to 
have power to make and ordaine whatsoever laws and orders 
should by them be thought good and proffittable per our sub- 
sistance." ^ 

Governor Yeardley arrived in the province in April, 1619, 
bringing with him what Brown calls "our Magna Charta".^ 

"Osgood, I, 59. 

• The term province is used here as the company was really a proprietor. 

• Journal of the House of Burgesses, 1619-1658-9, 36. 

• The First Republic in America, 308. 



188 VIRGINIA 

He sent out his summons commanding the councilors and two 
burgesses'' from each plantation to meet at Jamestown on 
July 30, 1619 (O. S.)- In order to have a proper setting for 
our study of Virginia a little space ought to be given to the 
geographical units represented in this assembly and the 
details of the first sessions so far as we know them. 

The settlements by this time extended from the mouth of 
the James River to a little above what is now Richmond. 
The four main divisions of the province were the City of 
Henrico, Charles City, James City, and the Borough of 
Kiccowtan. These correspond approximately with the present 
counties of Henrico, Charles City, James City, and Warwick, 
with the addition of a strip of territory opposite each one on 
the right hand bank of the James. 

In the first assembly the following units were represented : 

1. City of Henrico. 

2. Charles City: 

(a) Martin's Brandon,* 

(b) Bermuda Hundred, 
Charles City, 

(c) Smythe's Hundred, 

(d) Flowerdieu Hundred, 

(e) Ward's Plantation. 

3. James City: 

(a) James City, 

(b) Argall's Gift, 

(c) Martin's Hundred, 

(d) Lawne's Plantation, 

4. Borough of Kiccowtan. 

In all there were eleven units or divisions of the colony 
represented when the roll of the first assembly was called. 
The dismissal of the two members noted above reduced this 



' The term "borough" was applied by the company to every division whether a hun- 
dred, plantation or town and the term "Burgess" originally to every voter within them. 
The representatives in assembly were called Burgesses "at the start, not because they were 
representatives, but because they were citizens and voters in these boroughs." Soon, 
however, the idea of representation became attached to the word and it continued after 
the boroughs disappeared; in fact, down to the Revolution (Journals of the House of 
Burgesses, 1619—1658-9, XXVII). 

' The representatives from this division were not allowed to be seated. 



VIRGINIA 189 

number to ten. The assembly of 1619 therefore consisted of 
the governor, council, and twenty burgesses. It met in the 
church, the council and governor sitting in the choir and the 
burgesses in the body of the church.^ The speaker, John 
Pory, was not a burgess but a councilor. He was a Cambridge 
graduate and had been a member of Parliament for six years. ^° 

None of the acts of this first assembly bear on this study, 
but it is significant to note the early assertion of two privileges 
or rights which every assembly seemed to feel were funda- 
mental. For example, the session was scarcely begun when 
the right to pass on the qualifications of members was as- 
serted and the two burgesses from Martin's Hundred were 
dismissed. The other matter referred to concerned the dis- 
allowance of acts passed by the assembly. While it recognized 
the right of the company to disallow acts of the assembly it 
requested that all acts passed might be considered in force 
until notice of their disallowance reached the province. 
Then the assembly went one step further, and a bold step it 
was, in requesting that it might have the reciprocal privilege 
of disallowing any acts of the company's court which it 
deemed inapplicable under conditions in the province. The 
response of the company to the above requests will appear 
later. 

The earliest official act, establishing an assembly in 
Virginia, which has come down to us, bears date of 1621. On 
July 24 of that year year an Ordinance and Constitution of the 
Treasurer, Council, and Company in England, for a Council 
of State and General Assembly was adopted by the company. 
The Council of State was to consist, for the time being, of 
the governor and his councilors, all of which were named in 
the instrument. 

"The other council, more generally to be called by the 
governor once yearly, and no oftener, but for very extra- 
ordinary and important occasions, shall consist for the present, 
of the said council of state, and of two burgesses out of every 
town, hundred, or other particular plantation, to he respectively 

' The assembly did not become bicameral until about 1680. 
•0 Brown, 317. 



190 VIRGINIA 

chosen by the inhabitants: which council shall be called The 
General Assembly, wherein (as also in the said council of 
state) all matters shall be decided, determined and ordered 
by the greater part of the voices then present; reserving to the 
governor always a negative voice." ^^ 

This section also gave the assembly the power to enact such 
laws as the "publick weal" demanded and as seemed neces- 
sary. No law was to be in force until ratified by a general 
quarter court of the company in England. A reciprocal 
arrangement was to become effective regarding quarter court 
orders in the province 

. . . "after the government of the said colony shall once 
have been well framed, and settled accordingly." 

On the same day the Ordinance was passed Sir Francis 
Wyatt's commission as governor was issued. It contained a 
summary^^ of the Ordinance and was the governor's authority 
for putting the provisions of that instrument into operation. 
When the London company lost its charter in 1624 
Virginia became perforce a royal province. No provision was 
made for an assembly but Wyatt, who continued in office, 
and his Council, were willing to share their power with the 
people. Having no authority to summon an assembly he 
summoned a representative body in 1625 to which was applied 
the name convention. A portion of the writ summoning this 
body reads: 

"Whereas there are divers important occasions wch hereby 
concerne the generall Estate of Ye Colony, These are yt you 
cale together all the fremen of ye plantac' under you Comand 
And by the maior p'tie of ye voyt (voice) to elect two of ye most 
sufficient uppon whose judgements the rest wilbe Contented 
to rely ye they Appere at James Cyttie of the 10th of Maye 
next ensuinge, where we hope the business will not detain 
them above three or fower dyes.^^ 

The convention drew up a petition to the king and en- 
trusted it to former Governor Yeardley, who was elected 
provincial agent and instructed to proceed at once to England. 
Immediately upon his arrival in October, 1625, Yeardley 

"Hening, I, 112. 

" Ibid., I, 113. ■• Journal of the House of Burgesses, 1619-1658-9, XXX. 



VIRGINIA 191 

petitioned Charles to permit him to appear before the Privy 
Council and present the claims of Virginia. In his petition 
to the king he outlined what he wished to present. One of 
the things was: 

"To avoid the oppression of Governors there; that their 
liberty of Generall Assemblyes may be continued and con- 
firmed, arid that they may have a voice in election of officers 
as in other corporations." ^* 

Whether Yeardley ever appeared before the Privy Council 
does not appear but at any rate he was appointed governor in 
March, 1626,^^ and sailed for the province soon thereafter. 
He bore no reply to the convention's petition but continued 
his predecessor's use of conventions. He died in November, 
1627, and was succeeded by Francis West. By this date 
Charles had decided to grant the colony the privilege of an 
assembly and had sent word to that effect by William Capps, 
who arrived in the province in March, 1628. West at once 
ordered an assembly for March 20th.i^ 

As this marks the beginning of an unbroken line of as- 
semblies this phase of the subject can be left with the state- 
ment that an assembly was not summoned yearly as pro- 
posed in the Ordinance of 1621, but met at the pleasure of the 
governor, which was quite frequently, however, ^^ there being 
one hundred and twenty-one sessions between 1619 and 1776.^^ 

Virginia shows the greatest variation of any province re- 
garding the number of burgesses representing each unit of 
representation. Two, however, was the usual number 
allowed each unit. County representation was established 
coincident with the creation of eight counties in 1634.^^ 
After this date, though, parishes were allowed representation 
but this caused much trouble due to the question arising 
whether the salaries of parish burgesses were to be paid by 
the parish or by the county containing the parish.^" After 
1669 each county was represented regularly by two burgesses. 

'« Brown, 643. » Hazard, 230. i« Brown, 648. 

" An exception to this, of course, was during the fourteen years preceding Bacon's 
Rebellion. One assembly only was elected during that period. 

"Chandler, 15. I'Hening, I, 224. 

'» For a complete statement regarding the varying number of burgesses, see Chandler, 
15-17, and Miller, Chap. II. 



192 VIRGINIA 

This now brings us to the particular problem of Virginia's 
rule and practice regarding a residence qualification for bur- 
gesses. As we might expect, we find this bound up closely with 
the question of qualification for electors and this in turn in- 
timately connected with the question of the ownership of 
property. For a complete statement of all the matters 
mentioned above except residence the reader is referred to 
Chapters II and III of Miller. 

Many laws appear among the statutes of Virginia, during 
the provincial period, dealing with the general subject of 
elections. No better method of treatment suggests itself 
than to take these up chronologically. 

It has already been pointed out that during the pro- 
prietary period and also during the interval between that and 
the establishment of a royal government only residents were 
chosen to represent each unit in the House of Burgesses or in 
the provincial conventions. 

The first election act, bearing on this subject, passed 
after Virginia became a royal province was in 1640.^^ This 
provided that no sheriff was 

". . . to compel any man to go off the plantation where he 
lives to choose burgesses." 

This plainly provided for residential voting only and residential 
voting always carried with it residential representation. 
The next act bears date of 1655. It read in part: 

"That all persons who shall be elected to serve in As- 
sembly shall be such and no other than such as are persons 
of knowne integrity and of good conversation and of the age 
of one and twenty years — That all house keepers, whether 
freeholders, leaseholders or otherwise tenants, shall only be 
capeable to elect Burgesses, — Provided that this word house 
keepers repeated in this act extend no further than to one 
person in a ffamily." ^^ 

A portion of the above act was repealed by the next as- 
sembly in March, 1656, and the right of suffrage was extended 
to all freemen by the following provision: 

"Hening, I, 227. " Hening, I, 412. 



VIRGINIA 193 

"Whereas we conceive it something hard and unagreeable to 
reason that any person shall pay equall taxes and yet have 
no votes in elections, therefore it is enacted by the present 
General Assembly, that soe much of the act for chooseing 
Burgesses be repealed as excluded freemen from votes. . . ." ^^ 

The only exclusion of freemen from the privilege of suffrage 
under act of 1655 had lain in the phrase "one person in a 
family." 

This whole matter was cleared up, however, in a very 
complete election act in 1658. This was really a restatement 
of the acts of 1656 and 1657. The only important change was 
that all reference to "householders" and others was omitted 
and this clause substituted : 

"And all persons inhabitting in this collonie that are freemen 
to have their votes in the election of Burgesses. . . ." ^* 

In 1670 a freehold qualification for voting first appears 
in Virginia. Prior to this date all freemen^^ had exercised the 
privilege of suffrage. There had, of course, been no non- 
residence representation. But by a freehold qualification for 
voting there is recognized the right of property to be repre- 
sented and this we have found always brings with it non- 
residence voting and usually non-residence representation. 

The reason for this change in suffrage qualification is 
evident when one remembers that the period from 1660 to 
1675 was one of reaction under Governor Berkeley. During 
the protectorate Virginia had been practically a free de- 
mocracy. But with the reinstatement of a royal governor in 
1660 there began a gradual infringement on the rights and 
privileges formerly enjoyed by the people, which finally 
culminated in Bacon's Rebellion. The royal tone and English 
influence in the act of 1670 is very noticeable. 

"Whereas the usuall way of chuseing burgesses by the 
votes of all persons who haveing served their tyme are ffremen 
of this country doe oftener make tumults at the election to 
the disturbance of his majesties peace, then by their votes 

"Hening, I, 403. "Ibid., I, 475. 

» No act defining the term "freeman" appears in the colonial laws of Virginia. That 
the term was synonymous with "free man" seems evident from the opening sentence of 
the election act of 1670. 
13 



194 VIRGINIA 

provide for the conservation thereof, by makeing choyce of 
persons fitly quahfied for the discharge of soe greate a trust, 
and whereas the lawes of England grant a voyce in such 
elections only to such as by their estates real or personall 
have interest enough to tye them to the endeavor of the 
publique good; It is hereby enacted, that none but fifree- 
holders and housekeepers who are answerable to the publique 
for the levies shall hereinafter have a voice in the election of 
any burgesses in this country " ^^ 

The assembly which met under the influence of Bacon in 
1676 passed several measures all tending to relieve the dis- 
content of the colonists. One of these acts^^ was the repeal of 
the Election Act of 1670 and the extension of the suffrage 
once again to all freemen. Another act of this same year 
which affects this study was one providing that the burgesses 
for Jamestown should be chosen by the 

. . . "housekeepers, freeholders and freemen, as are at the 
time of such election listed within the bounds aforesaid, and 
soe liable to pay levies there, and by none other, any custome 
or usage to the contrary notwithstanding." ^^ 

This plainly established residence representation for James- 
town as, of course, only those voting there would be eligible 
for election. 

But Virginia's relief from what many considered an 
unjust curtailment of the privilege of suffrage was short lived. 
With the reinstatement of Berkeley in 1677, additional 
Instructions were sent him from England. The part affecting 
this study read: 

"You shalbe noe more obliged to call an assembly once 
every yeare, but only once in two yeares, unlesse some emer- 
gent occasion shall make it necessary, the judging whereof 
wee leave to your discretion. Alsoe whensoever the as- 
sembly is called ffourteene dayes shall be the time prefixed 
for their sitting and noe longer, unlesse you finde goode cause 
to continue it beyond that tyme. 

You shall take care that the members of the assembly be 
elected only by ffreeholders, as being more agreeable to the 
custome of England, to which you are as nigh as conveniently 
you can to conforme yourselfe." ^^ 

26Hening, II, 280. ^^ Ibid., II, 362. 

"76td., II, 356. "/6i<f., II, 425. 



VIRGINIA 195 

By the above a freehold qualification for voting and holding 
office was established by royal command, and this remained 
the practice of the province throughout the remainder of its 
colonial existence. 

In 1692 an act was passed which contained the form of 
return to be used by the sheriffs in reporting the election of 
burgesses. As I believe this form shows that only residents 
could be returned under it it is given in full : 

"By vertue of this writt I have caused to be Summoned 
the Freeholders of my county to meet this day being the day 
of Anno. At the Courte house of ye saide Countie being 

the usuall place for Election of Burgesses and given them in 
charge to make Election of two of the most able and discreet 
Persons of the said County who accordingly have elected 
A. B. & C. D. who have full power and authority for the said 
County aforesaid to act and consent to such things which 
shall be Ordered and appointed by ye Governor, Councill & 
Burgesses at the next meeting and Session of Assembly." ^° 

From this date to the adoption of the constitution of 1776 
only residents could have been legally elected burgesses by the 
various counties. Reasons for this statement will be given in 
full later. But at this point, the period from 1670, which 
date marks the adoption of a freehold qualification for suffrage,, 
to 1692 should be examined to see whether it shows that non~ 
residence representation was practiced even when there was 
no law preventing it. 

But four instances of non-residence representation appear 
during this period. Miles Carey, of Warwick County,^^ 
represented his own county from 1684 to 1692,^^ but repre- 
sented James City in 1693.^^ Since these two were adjoining 
counties it might be thought probable that the above was a 
result of removal from one to the other or of a shift in boundary 
lines between them. But neither seems to have been the case 
and so we have a clear instance of non-residence representation. 

The above suggests that there are several instances in the 
House Journals where the same man represented different 

«» Journal of the House of Burgesses, 1659-60 — 1693, 388-389. 

" Colonial Virginia Register, 39; Bruce, II, 577. 

32 Journals of the House of Burgesses (1659-60—1693), XI, XIII, XIV. 

"Ibid., XV. 



196 VIRGINIA 

counties but merely as the result of the formation of new 
counties out of old ones. For example, William Leigh repre- 
sented New Kent in the first session of 1692, but Kings and 
Queens in the second session of that year and in 1693.^* 
Lemuel Moses represented Lower Norfolk almost continuously 
from 1661 to 1690, but in 1693 he appears as a burgess from 
Norfolk County.^^ William Robinson also represented Lower 
Norfolk from 1684 to 1686, but Norfolk in 1691. Arthur 
Spicer represented Rappahannock County from 1685 to 1688, 
but appears for Richmond in 1693.^^ Likewise William 
Colston represented Rappahannock at one time and later 
appears for Richmond. 

But to return to instances of non-residence representation. 
St. Leger Codd, a resident of Northumberland County ,^^ 
represented his own county in 1680-1682,^^ but was also chosen 
as the representative of Lancaster County at the same 
session. ^^ According to the Journal record he was evidently 
given his choice as to which county he would represent.^" 
He chose to serve for his home county, but in 1684 he was again 
elected to represent Lancaster County and did so in the 
assembly of that year.*^ Edward Hill, a member of a prom- 
inent family of Charles City County,^^ represented that 
county for several years previous to 1679, but in that year he 
was a burgess from James City County .^^ He later, 1684, 
again represented his home county.^ The fourth and last 
instance is that of Thomas Matthew, of Northumberland 
County, who was a burgess for Stafford in the Bacon As- 
sembly of 1676.45 

" Kings and Queens first represented in second session of 1692. 

" Norfolk formed in 1691 from Lower Norfolk (Howes Outline of History of Virginia, 
392). 

« Richmond County created in 1692 when Rappahannock was extinguished, forming 
Essex and Richmond (Howes, 463). 

" Bruce, Social Life of Virginia, 63. 

»« Journals of the House of Burgesses, 1659-60 — 1693), X. 

«» Bruce, Institutional History of Virginia, U, 421-422. 

«« Journals of the House of Burgesses (1659-60 — 1693), 122. 

«■ Ibid. (1659-60—1693), XI. 

" Colonial Virginia Register, 36, 42; Bruce, Institutional History, II, 24. 

" Journals of the House of Burgesses (1659-60 — 1693), 126. 

" Ibid. (1659-60—1693), XI. 

« Bruce, Institutional History. II, 421; House Journal (1659-60—1693), IX. 



VIRGINIA 197 

From this point to the constitution of 1776 there are six 
acts bearing on the general subject of elections. An alaborate 
act was passed in 1699.^" This covered practically every phase 
of the subject. Voting was confined strictly to the freeholder 
of county or town. Nothing was said about the qualifications 
for burgesses but the act itself contained the very form of 
return writ provided by the law of 1692. 

Of the many election acts passed by the Virginia provincial 
assembly the only one containing a plain statement regarding 
a residential qualification was in 1705. This provided: 

"That the Freeholders of every county that now is or 
hereafter shall be in this dominion, now have, and hereafter 
shall have the privilege and liberty of electing and choosing 
two of the most fit and able men of such respectively, to be 
present, and to act and vote in all General Assemblies. . . ." ^^ 

A later clause of the same act provided that 

". . . every freeholder, actually resident within the county 
where the election is to be made, . . . shall appear ac- 
cordingly, and give his vote " *^ 

The next law^^ on this subject was in 1736 and it is re- 
markable in one particular. While providing for property 
representation it limited this in a way that no other colony 
did. The preamble stated that the act was called into being 
by the fact that much fraud had been practiced by leases and 
sales of land upon feigned considerations 
. . . "to create and multiply votes". ^^ 

So the freehold necessary to carry with it the privilege of suffrage 
was definitely stated. One must have one hundred acres of un- 
improved land or twenty-five acres of land with a house upon it. 
He must have had title to it for at least one year if it had been 
purchased. ^^ Had it been inherited this provision was waived. 
But here is the point of departure from similar laws in other col- 
onies. If the one hundred acres lay in two different counties the 
owner could vote only in the county containing the larger part. 

"Hening, III, 172-174. "Ibid., Ill, 236. *> Ibid., Ill, 238. 

"Williamsburg was given representation in 1735. Voting was confined to residents 
and only citizens could be chosen burgesses. Hening, V, 205. 
'0 Hening V. 475-476. 
'1 In the margin of the statute it says, "Residence of one year required". 



198 VIRGINIA 

While such a provision does not absolutely make im- 
possible non-residence voting and non-residence representa- 
tion yet the chance of either is negligible. It is hardly probable 
that, when a man had but one vote, he would cast that in a 
county where he did not live. It seems that one would only 
do this when it chanced, as would sometimes, but seldom, be 
the case, that he lived nearer the county seat of a county 
where he owned property than he did to the county seat of the 
county in which he resided. 

The Election Act of 1762 would seem, on the face of it, to 
give the voters of each county the privilege of electing their 
burgesses wherever they chose.^^ But it contained the pro- 
vision of the law of 1736 that the freeholder could vote in but 
one county, and it also contained the form of election return 
adopted in 1692. In 1769 a long act differing in no essential 
detail from the above act was passed. 

Without a checking of the lists of assembly members from 
1692 to 1776 the position has been taken that there was no 
non-resident representation during this period. The reason 
for such is that such representation would have been plainly 
illegal as has been shown. Yet in Miller's thoroughgoing 
study of the legislature of Virginia this statement is found: 

"Residence in the county from which elected was 
probably not compulsory, for Patrick Henry was chosen from 
Louisa County in 1765, though he was not then a resident of 
that county." ^^ 

W. W. Henry^"* makes the same statement and says that a 
former burgess from Louisa County stepped aside so that the 
province might have the services of Patrick Henry, who was a 
resident of Hanover County. The same author says later that 
Patrick Henry moved to "his place" in Louisa County in 
1765 and remained there until 1768. William Wirt, however, 
in his life of Patrick Henry, which was written after con- 
sultation with many men who knew him well, says: 

" The freeholders were to have the privilege of electing "two of the most able and 
fit men, being freeholders, qualified to vote in such county respectively." (Hening, VII, 
517-530.) 

"p. 51. "Patrick Henry, Life, Correspondence and Speeches, 61, 70, 123. 



VIRGINIA 199 

". . . he removed in the year 1764 to the County of Louisa 
and resided at a place called the Roundabout." ^^ 

The Assembly of 1765 met on May first and the vacancy 
in the representation of Louisa County was not officially 
acted upon until that date. The former burgess had been 
chosen coroner, which incapacitated him from serving any 
longer. An election was ordered to fill the vacancy and on 
May 20th Patrick Henry took his seat in the Assembly as a 
representative from Louisa County.^^ Even if W. W. Henry 
rather than Wirt is correct about the date of Patrick Henry's 
removal to Louisa County, it is evident from the above that 
there were five months in 1765 in which he might have made 
the change of location prior to his election. Taking into con- 
sideration the law in the matter, it is altogether probable that 
he was a resident of Louisa County when chosen a burgess for 
that county. 

Virginia's provincial history covered a period of one 
hundred and fifty-seven years. During one hundred and 
thirty-five of those years she had a residential qualification for 
burgesses. Her Revolutionary constitution of 1776 confirmed 
this practice and carried it over into the new state government. 
Defining the various powers of the new government that 
document declared: 

Sec. IV. "The Legislative shall be formed of two dis- 
tinct branches, who, together, shall be a complete Legislature. 
They shall meet once or oftener, every year, and shall be called 
the General Assembly of Virginia. 

Sec. V. One of these shall be called the House of Dele- 
gates, and consist of two Representatives to be chosen for 
each county . . . annually, of such men as actually reside 
in and are freeholders of the same. . . ." ^'^ 

As our study of Virginia ends at this point it only remains 
for brief comment to be made on the preceding pages. As in 
other colonies a freehold qualification for suffrage was adopted 

"p. 55. 

" Journal of the House of Burgesses (1761-1765), 345, 374. Events must have moved 
rapidly, for only nine days later he introduced his famous resolutions against the stamp tax. 
" Hening, I, 51. 



200 VIRGINIA 

in Virginia only when the forces of the royal government were 
in the ascendency and those of the assembly on the decline. 
Where Virginia differs from other colonies is that in them a 
freehold qualification for suffrage brought with it non- 
residence voting and non-residence representation. So did it 
in Virginia, but for a space of twenty-two years only when the 
assembly found a way, evidently intentionally, to restrict 
voting to residents without at the same time running afoul 
the royal requirement that suffrage must be based on owner- 
ship. 

During the twenty-two years when non-residence repre- 
sentation was allowed we have found only four cases where 
the right of choosing a non-resident was exercised by a 
Virginia county. Curiously enough in two of these cases it 
was James City County, within whose bounds the assembly 
met that chose a non-resident. The very fewness of the 
cases of non-residence representation is added proof of the 
fact mentioned in connection with other provinces that, in 
the absence of continual pressure from crown or proprietor 
and where there was no city in the province of suf^cient size 
and importance to dominate the life of the province, the in- 
habitants followed the logical and natural course of action in 
choosing their representatives in the provincial legislature. 



NORTH CAROLINA 

The settlements which afterward became the nucleus around 
which a new government was formed south of Virginia were 
an overflow from the southern counties of that province. 
When they were later included in the territory granted to the 
Earl of Clarendon and his associates the transfer of authority 
over them was marked by even less governmental oversight 
and direction than they had previously had. It is not too 
much to say that the Albemarle settlements developed 
throughout the proprietary period with practically no help 
from the proprietors. On the other hand, they felt the re- 
pressive hand of the proprietors just as little. The explana- 
tion of such a situation is that the Carolina territory was 
granted to a group of proprietors instead of to a single one. 
So it inevitably followed that no uniform purpose and plan 
could obtain in its development. 

Colonization began in earnest after Carolina had been 
granted to the proprietors in 1663. The charter of that year 
contained the usual grant of legislative power to the pro- 
prietors. In that portion of the charter directing that the 
power of legislation should be shared with the freemen lies 
the germ of the North Carolina Assembly. Legislation was to 
be by the proprietors. 

". . . with the advice, assent and approbation of the 
freemen of the said province, or of the greater part of them, 
or of their delegates or deputies, whom for enacting of the 
said laws, when and as often as need shall require, we will 
that the said (here follow the names of all the proprietors) 
and their heirs, shall from time to time assemble in such 
manner and form as to them shall seem best." ^ 

A later clause gave the proprietors or their magistrates alone 
the right to make laws temporarily, 

. . . "because such assemblies of freeholders cannot be so 
conveniently called, as there may be occasion to require the 
same. ^ 

1 N. C. Col. Recs., I, 23. ' Ibid., I, 24. 

201 



202 NORTH CAROLINA 

In an attempt to attract settlers to the new province the 
proprietors issued in 1663 a "Declarations and Proposals to 
all that will Plant in Carolina". One of the promises contained 
therein was that there would be an assembly composed of 
. . . "Two out of every tribe, division or parish." ^ 

Governor William Berkeley, of Virginia, was one of the 
proprietors. Being near the new province a commission^ 
was issued him in 1663 authorizing him to commission a 
governor for Albemarle River. He could appoint two gov- 
ernors if he wished — one for the north side of the river and 
one for the south, along with six councilors. The governor and 
councilors so appointed were to have the power to make 
necessary laws, 

. . . "by and with the advice and consent of the freeholders 
or freemen or the Major part of them, their deputyes or 
deligates." 

Berkeley appointed William Drummond governor. It should 
be kept in mind that the only people in the province at this 
time were those already on the ground when the charter of 
1663 was issued. 

The Charter of 1665 differed little from the one of 1663, 
Under its provisions the assembly in addition to governor 
and council was to consist of the 

. . . "freemen of the said province or territory, or of the 
freemen of the county, barony, or colony, for which such 
law or constitution shall be made." ^ 

The provision enabling the governor and council to legislate 
for the time being was worded as in the former charter with 
the single change of the word "conveniently" to "suddenly".^ 
The liberal terms of the Concessions and Agreements 
issued the same year as the second charter have often been 
commented upon. By some they have been thought to re- 
flect the liberal political views of the proprietors. They seem, 
however, to have been issued in response to the demands of 

» N. C. Col. Recs., I, 45. ' Ibid., I, 105. 

*Ihid., I, 48-50. ^ Ibid., I. 106. 



NORTH CAROLINA 203 

the party of Barbadians who were going to make a settlement 
near Cape Fear.'' Eleven sections of the Concessions^ were 
given to an enumeration of the powers of the assembly. Had 
they all been put into operation the assembly in Carolina, as 
Osgood points out, 

. . . "would have occupied a position where elsewhere it 
won only as a result of prolonged effort and the accumulation 
of many precedents." ^ 

The portion of the Concessions bearing on this study read: 

"That the inhabitants being freemen or chief e agents to 
others of ye Countyes aforesd doe as soone as this our Com- 
mission shall arrive by virtue of a writt in our names by the 
Governor . . . make choice of twelve Deputyes or repre- 
sentatives from among themselves whoe being chosen are to 
joyne with him the s[ai]d Governor and Councill for the 
makeing of such Lawes Ordinances and Constitutions as 
shalbe necessary for the present good and welfare of the 
severall Countyes aforesd but as soone as Parishes Divisions 
tribes or districcons of ye said Countyes are made that then 
ye Inhabitants or Freeholders of the sevH and respective 
Parishes Tribes Divisions of Districcons of the Countyes 
aforesd doe . . . annually meete on ye first day of January 
and chuse freeholders for each respective denizen Tribe or 
parish to be ye Deputyes or representatives of ye same, 
which body of Representatives or ye Majr parte of them 
shall wth the Governor and Council aforesd be ye Genii 
Assembly of the County for which they shall be chosen. . . ."^" 

In examining the constitutional background of the North 
Carolina Assembly we now come in point of time to the 
Fundamental Constitutions, a document inseparably as- 
sociated with the name of John Locke. In one way a con- 
sideration of this would fit more appropriately into the 
chapter of South Carolina, for it was in that province that the 
proprietors made their most earnest endeavor to enfocre its 
provisions. But since it was meant to apply to the Carolina 
territory as a whole, notice must be taken of it here. 

This document^^ was feudal and monarchial in character 

'N. C. Col. Recs., I, 39-42. »» N. C. Col. Recs., I, 81. 

'Ibid., I, 81-84. ^i Ibid., I, 187-205. 

•Osgood, II, 205. 



204 NORTH CAROLINA 

and showed a distinct reaction against the liberal spirit which 
had characterized the "Concessions". In fact, the avowed 
purpose was to make the government of the province 

. . . "most agreeable to the Monarchy . . . and that 
we may avoid erecting a numerous democracy." ^^ 

The law-making body was to be called Parliament and it 
was to be composed of four groups sitting together but voting 
by groups. A majority vote in any one group was sufficient 
to defeat a measure. These groups were: 

(a) Proprietor's Deputies, 

(b) Landgraves, 

(c) Caciques, 

(d) Representatives. 

The qualifications for electors and for representatives 
appear in the following: 

"There shall be a Parliament consisting of the Proprietors, 
or their deputies, the Landgraves and Caciques, and one free- 
holder out of every precinct, to be chosen by the freeholders 
of the said precinct respectively. They shall sit all together 
in one room, and have, every member, one vote. 

"No man shall be chosen a member of Parliament, who 
has less than five hundred acres of freehold within the pre- 
cinct for which he is chosen, nor shall any have a vote in 
chooseing the said member, that hath less than fifty acres of 
freehold within the said precinct. 

"A new Parliament shall be assembled the first Monday 
of the month of November, every second year." ^^ 

A copy of the Fundamental Constitutions was sent to 
Governor Peter Carteret of "Albemarle" and his Council in 
1670, together with Instructions.^* The latter states that the 
proprietors realize the impossibility of putting the "model 
government" into effect at once, so for the present the governor 
was to, 

". . . Issue out writts to the Power Precints of the 
County of Albemarle requiring each of them to elect five 
freeholders to be their representatives to whom the five 

" N. C. Col. Recs , I, 188. 

"Ibid., I, 199. i*Ibid., I, 181-183. 



NORTH CAROLINA 205 

persons chosen by us being added and who for the present 
represent the Nobility are to be your Assembly. . . ." ^^ 

The assembly which met as a result of this order was not 
the first one for this territory however. Not much is known 
of the ones which had preceded it but it is quite certain that 
there were sessions in 1665, 1667, and 1669.^'' After 1670 the 
sessions were quite regular. This date does mark, however, 
the first definite authority for the choice of any particular 
number of representatives by each election unit. 

Prior to 1691 the Albemarle settlements had had a separate 
executive from those settlements which had been made near 
Cape Fear and farther south. But in this year the pro- 
prietors decided to unite the whole colony under one executive 
and one assembly. The instructions to Governore Philip 
Ludwell are given in the chapter on South Carolina. They 
contain a plan for the assembly in which Albermarle County 
was to have five representatives, while the same number was 
given to each of the three counties which lay in the territory 
that later became South Carolina. The proprietors must 
have had some doubt regarding the feasibility of this plan, for 
on the same date Private Instructions were issued to Ludwell 
regarding the constitution of the assembly in case he found it 

"Impracticable for to have the Inhabitants of Albermarle 
County to send Delegates to the General Assembly " ^^ 

The governor must have found it "impracticable," for no 
attempt seems to have been made to interfere with the 
Albemarle Assembly. From this date, however, to 1712 
there was one executive. The actual working out of this plan 
resulted in the northern part of the colony having as an 
executive a deputy governor appointed by the governor at 
Charleston. When no deputy governor was appointed, as at 
times was the case, executive power was exercised by the 
president of the council. Attention has often been called to 
this period of neglect on the part of the proprietors, but this 
neglect had, without doubt, its compensating features. Thrust 

»N. C. Col. Recs., I, 181. 

"Osgood, II, 235; N. C. Col. Recs., I, 183-187. >' N. C. Col. Recs., I, 380. 



206 NORTH CAROLINA 

thus practically upon its own resources, the assembly became 
accustomed to assuming certain responsibilities which it 
would not later surrender. 

It was during this period that the first extension of settle- 
ment as reflected in the membership of the assembly oc- 
curred. At a Palatine's Court held by Governor Archdale 
in December, 1696, the county of Bath was created and was 
granted the privilege of sending two burgesses to the assembly 
which was to meet the following month. 

In 1712 Edward Hyde was commissioned by the pro- 
prietors as governor of North Carolina. This date, therefore, 
marks the complete separation of the two parts of the prov- 
ince.^^ Neither Governor Hyde's commission nor that of his 
successor two years later contained anything regarding 
assemblies which means, without doubt, that the assembly 
continued to be elected on the same basis as had obtained 
since 1670. 

Three years after the separation from South Carolina the 
assembly passed a comprehensive election law which is often 
referred to in the records of the time as the Biennial Act. 
The reason for its enactment was that 

". . . frequent sitting of Assemblies is a principal safe- 
guard of their peoples Priviledges." ^^ 

The freemen of the eight precincts mentioned by name, 
of Albemarle County^" were to choose each two years, 

"five Freeholders out of every precinct." ^^ 

Provision was made that the new precincts should have the 
privilege of sending two representatives each. 

Qualifications for voting were: twenty-one years of age; 
one full year residence in the province and to have paid one 
year's levy. No statement appears as to the amount of free- 
hold required to make a freeman eligible for election as a 

18 N. C. Col. Recs., I, 731, 775-779, 841. "Ibid., 11, 213. 

■-» The term Albemarle County up to this date was practically the colony name; 
in other words, it was synonymous with North Carolina. The precincts were really counties. 
Of the eight precincts mentioned in this act seven of them appear as counties on a present- 
day map of North Carolina. 

" N. C. Col. Recs., II, 214. 



NORTH CAROLINA 207 

representative. This act continued to govern elections in the 
province until after the transfer of authority from pro- 
prietors to the crown in 1729. 

The first town to be granted representation in the as- 
sembly was Bath in 1715. The act permitting it to send one 
representative to the assembly extended the same privilege 
to all other towns of the province as soon as 

"such Town shall have at least Sixty Families". ^^ 

The first royal governor, George Burrington, was appointed 
in 1730. His commission^'^ authorized him to call General 
Assemblies of "Freeholders and Planters", as need might 
require. He was cautioned in his Instructions to see that the 
assembly was elected "only by freeholders". ^^ But to obey 
his Instructions on this point would bring him into conflict 
with the law of the province for by act of 1715 election of 
members of the assembly was by "freemen". The governor 
soon found this law in his way, for in 1732 he wrote the home 
government 

. . . "The Biennial Act must be reprealed to bring the 
people into good Disposition." ^^ 

The contest over this matter evidently raised the question as 
to what was the constitution of the province, the charters of 
1663 and 1665 or the governor's Commission and Instruc- 
tions.2^ The governor's suggestion brought action for the 
law of 1715 was 

. . . "Repealed by his Majesty's order", ^^ 

but we do not learn just when. 

It must have been, however, about at the end of Burring- 
ton's adminstration. His successor, Gabriel Johnston, was 
commissioned in 1733, but did not assume ofhce until the 
following year. His Instructions do not appear in the records 
but the Lords of Trade in a letter to the King, July 18, 1733, 

" Acts of Assembly of N. C. (Davis EditioTi), 19. 
" N. C. Col. Recs., Ill, 66-73. 2' Ibid., Ill, 343. 

" Ibid., Ill, 93. 26 Raper, 45. 

" Laws of N. C. (Iredell-Martin Edition), 9. 



208 NORTH CAROLINA 

say that they contained no "material alteration"^^ from those 
issued his predecessor. Without having that document to 
examine we know that if the subject of suffrage quahfication 
was mentioned a freehold requirement was insisted upon. 
During the first year of Johnston's administration an act 
setting the qualification of electors and representatives was 
passed and received the governor's approval.^^ No details 
about it appear in the records neither is the law given in any 
of the editions of colonial laws. This makes it seem probable 
that it was disallowed by the king. 

This leaves us face to face with the puzzling question as 
what rule governed elections, and designated the number to 
be chosen from each county, between the repeal of the law of 
1715 and the enactment of the one of 1743. 

The election act ^° of the latter year begins 

. . . "Whereas there is no law now in force . . ." 

This act covered the whole question of elections. All elections 
were to be by ballot. Voting was confined to freeholders who 
were compelled to take an oath they had owned fifty acres of 
land for at least three months in the county in which they 
appeared to vote and that they had been inhabitants of the 
province six months. To be chosen a member of the assembly 
one must be twenty-one years of age; an inhabitant of the 
province one year; and most possess a freehold 
. . . "in the county where he shall be elected or chosen" 

of at least one hundred acres of land. 

So far as we have any record the above act while changing 
the whole basis of suffrage in the province did not arouse 
serious opposition. The colonists probably bowed before the 
constant and irresistible royal pressure which demanded a 
property qualification for suffrage. But an election act of 
three years later raised a storm which was not quieted for 
years. 

Governor Johnston summoned the assembly to meet that 

"N. C. Col. Recs.. III. 497. 

*>Ibid., IV, 97. 108. "Laws of N. C. (Swann's Edition), 177-180. 



NORTH CAROLINA 209 

year, 1746, at Wilmington. This was not the usual place of 
meeting and the northern counties, those of the old Albemarle 
settlements, refused to send representatives because of the 
distance. As a result there was not a legal quorum but that 
did not deter the governor nor those members which did 
appear. At the time the act was passed there were only four- 
teen members present^^ although more appeared later. The 
preamble^^ of the act stated that the northern counties were 
accustomed to sending five persons to represent them, while 
the southern and western counties, which were more numer- 
ous and contributed more "to the General Tax" of the prov- 
ince, only sent two each. To remedy this situation the repre- 
sentation of all counties was limited to two. The effect of this 
in the northern counties can be imagined. Petitions and 
depositions^^ galore were sent to England in protest. From 
one of the former we have a partial answer to the query 
raised above regarding the representatives from each county 
when there was no law governing the subject. It is said that 
the counties of the Albemarle territory had each elected 

"five burgesses without intermission continued so 
ever since the Establishment of this Government not only 
under the late Lords Proprietors but also under your Majesty's 
Governors until Nov. 1746." ^^ 

The act of 1746 was repealed by the crown in 1754 but 
during those years the northeastern counties were not repre- 
sented in the lower house of the assembly, as they would not 
elect fewer than five representatives.^^ Between 1754 and 
1775 the former unequal representation was continued. 

By 1760 the election act of 1743, which governed elections 
after the repeal of the election act of 1746, had become in- 
operative, but how or why are questions the records do not 
answer. With no law on the subject Governor Dobbs was 
at a loss where to turn for authority regarding elections. 
He made the very unusual decision, for a royal governor, 

»iN. C. Col. Recs., IV, 1159. «» N. C. Col. Laws (Swann), 223-224. 

"N. C. Col. Recs., IV, 1169-1179; For the governor's point of view see Ibid., IV 
1163-1166. 

"Ibid., IV, 1158. »Raper, 91. 

14 



210 NORTH CAROLINA 

that the charters granted the proprietors were in force in the 
absence of law on the subject. 

His point of view is shown by his answers to a set of 
resolutions passed by the lower house of the assembly which 
he sent to the Board of Trade : 

"14th Resolution That the diversity of the Forms in 
writs of election issued to different Counties, some of which 
direct the Freeholders and others the Inhabitants in General 
to choose, by which last form servants and even Convicts, 
may elect " 

"Answer: In answer to this I must observe that upon the 
repeal of these and several other Laws which depended upon 
them, I was at a great loss how to issue the writs as the Law 
for Freeholders to elect was then repealed, and therefore I 
thought myself obliged to follow the first and second Charters 
of the Colony, which power was loged in the Freemen of the 
Colony or their delegates, and as I did not advert to the dis- 
tinction made between Freemen and Inhabitants as my in- 
tention was that all free inhabitants should be Electors, until 
a proper law should again fix it to Freeholders. . . ." ^® 

This situation was remedied by the Election Act of 1760, 
the last one during the provincial period. ^^ The election 
machinery provided for by this act differed from that of 1743 
but the qualification for voters and for representatives were 
exactly the same as in the latter. This act also provided for 
non-residence voting in towns in a manner different from 
anything noted so far in this study. By the last section of the 
act Brunswick was granted representation. To be a repre- 
sentative from there one must have owned, for three months 
at least, . . . 

"... a Brick, Stone or framed House, in the said town, 
of the Dimensions of Twenty Feet by Sixteen, with one or 
more Brick or Stone Chimney or Chimnies. . . ." ^* 

Every tenant of such a house for three months prior to elec- 
tion could vote. In case such a house was unoccupied the 
owner of the house could vote in the town election. 



« N. C. Col. Recs., VI, 303. " N. C. Col. Laws (Davis Edition), 247-250. 
^' Ibid. (Davis Edition), 250. 



NORTH CAROLINA 211 

Nothing further appears among the laws of North Carolina 
regarding qualifications for representatives until the Consti- 
tution of 1776. But before noting that document we will see 
what had been the practice of the colony regarding the use of 
non-residents as representatives. 

The law of 1715 governed elections until 1735 and to a 
certain extent until 1743. Under that law voting was by the 
freemen while their choice of representatives was plainly 
limited to resident freeholders. But the law of 1743 imposed 
the English system of representation upon the colony. Under 
this a specific freehold qualification was provided for both 
electors and representatives. The working out of such a law 
in every colony was that one could vote in whatsoever county 
he held a sufficient freehold and was likewise eligible for 
election from that county. So the only period which needs to 
be examined for non-residence representation is that between 
1743 and 1776. A careful examination of the records shows 
twelve clear cases of non-residence representation.^^ 

John Ash, a resident*" of New Hanover County, repre- 
sented that county practically continuously from 1752 to 
1775, but at a May session of the Assembly in 1759 he repre- 
sented Craven County.*^ 

Tom Barker, a resident*^ of Chowan County, began his 
career as a representative by serving for the neighboring 
county of Bertie for the years of 1744 and 1747. Later he 
served for Edenton, the principal town of his county, from 
1754 to 1757, and for the county of Chowan for 1760 and 
1761.*^ Another Chowan resident who represented a neigh- 
ing county was James Blount (Blunt). He represented 
Chowan in 1764 and from 1766 to 1773, but in 1765 he was 
one of the representatives of Perquimans County.** 

39 On their face the records seem to show many instances. Some of these are due to 
identity of names; removal; change in boundary lines, etc. A few instances which may 
have been cases of non-residence representation but which could not be satisfactorily 
verified have been omitted. 

*" Waddell, History of New Hanover County, I, 166. 

" N. C. Col. Recs., VI, 97. 

« Grimes, Abstract of N. C. Wills, 8, 123, 281, 349. 

"N. C. Col. Recs., IV, 733, 1181; V, 232, 521, 850; VI, 362, 661. 

« Ibid., VII, 63; XVI, 979; XXIII, 993. 



212 NORTH CAROLINA 

Richard Caswell was one of the most prominent and most 
active public men during the fifteen years prior to the Revolu- 
tion. He was also the first governor of North Carolina during 
its existence as an independent commonwealth. He was a 
resident^^ of Dobbs County in the western part of the state 
and represented his county practically continuously from 1760 
to the Revolution. But in October, 1769, he represented the 
town of New Berne, where the assembly met that year, and 
in December of the following year he was the representative 
of Bath.^« 

John Dunn, an official of Rowan County, represented 
Anson County in 1762. Later he served for Salisbury, the 
principal town of Rowan County.^^ 

William Hooper, a resident of New Hanover,^^ repre- 
sented the town of Campbelton (now Fayetteville) in January, 
1773, and his own county in December of the same year.*^ 

In 1773 Memucan Hunt appears as representative for both 
Bute and Granville Counties.^*' These were adjoining counties 
on the northern border of the state. There is no record in the 
House Journal that Hunt had to decide as to which county 
he would represent although in two similar cases, which will 
be noted later, that was demanded of representatives which 
appeared for two counties. 

William Maccay's (Mackay) period of service as a repre- 
sentative for the county of Tyrrel extended from 1746 to 
November, 1762.^^ The only break during this period was in 
April, 1762, when he represented Perquimans County.^^ 

Thomas Macknight, of Currituck County, represented 
that county from 1762 to 1775. But in 1773 he was also 
chosen as a representative of Pasquotank County. He was 
asked to make his choice as to which county he wished to 
represent, and, as might be expected, he chose the one in which 
he resided. ^^ 

«N. C. Col. Recs.. VIII, p. IV. "Waddell, I, 197, 208. 

"Ibid.. VIII, 105. 303. «»N. C. Col. Recs., IX, 448, 734. 

"Ibid., V, 320, 828; VI, 801; VIII, 107. '' Ibid., IX, 733, 734. 

" Ibid., IV, 815, 856; V, 232, 521, 893; VI, 390, 662, 893. 

« Ibid., VI, 800. 

" Ibid., IX, 452, 635-636. 



NORTH CAROLINA 213 

A case similar to the above had occurred in 1746. In that 
year Samuel Swann, one of the most prominent men of the 
province, was elected representative by the county of Onslow, 
where he lived and also by New Hanover County.^^ After 
being elected speaker he was asked for which county he would 
serve and he replied, Onslow; whereupon the clerk was in- 
structed to issue writs for a new election in New Hanover. 

Edmund Smithwick (Southwick), of Tyrrel County, is 
another example of a representative of experience being 
chosen by a county in which he did not reside. He was a 
representative of his county^^ in nearly every assembly from 
1744 to 1771, but in 1766 he represented Northampton 
County.^*^ 

An exactly similar instance to the above is that of Edward 
Vail, who represented the county of Chowan continuously 
from 1754 to 1769 except in November, 1766, when he served 
as one of the representatives for Onslow County.^'' 

Non-residence representation in North Carolina has some 
aspects strikingly similar to New England. Men do not 
seem to have been chosen as representatives simply because 
they were large landowners in the county electing them. 
When a county did go outside its bounds for a representative, 
a prominent man and one of legislative experience was 
chosen. In fact, there must have been some pride, as in New 
England, in being represented by a well-known public man. 
Otherwise, it is hard to account for Chowan County choosing 
John Ash as one of its representatives in 1759, when the 
assembly met within its borders, or New Berne's choice of a 
non-resident (Caswell) as its single representative in 1769, 
or Bath's choice of Caswell the following year as its repre- 
sentative. 

Election of non-residents also seems to have been as a 
result of merit rather than as a result of campaigning. This 
fact is shown by the three double elections given above. A 
candidate would probably not offer himself in more than one 

" N. C. Col. Recs., IV, 815. " Ibid., VII, 342. 

» Ibid., IV, VI, VII, VIII. " jbid., VII, 343. 



214 NORTH CAROLINA 

county knowing that he would be allowed to serve for but 
one. There is a possibility, of course, that this might be 
done if the candidate felt he faced possible defeat in his home 
county, but there is reason to believe that the three cases 
given represent the spontaneous choice by two counties of 
the same capable and experienced public official. 

In North Carolina, the adoption of its first constitution 
brought only a qualified residential qualification for repre- 
sentatives. Each county was to have two representatives and 
their qualifications were stated in Section Six. 

"That each Member of the House of Commons shall have 
usually resided in the County in which he is chosen, for one 
year immediately preceding his Election, and for six Months 
shall have possessed and continue to possess, in the county 
which he represents, not less than one hundred acres of Land 
in Fee, or for the Term of his own Life." 

This constitution retained a slight freehold qualification 
for voting for senators. In order to vote for representatives 
the qualifications were: 21 years of age; one year resident in 
any county; and to "have paid Public Taxes". One meeting 
these requirements could vote in the county where he resided. 

Non-resident voting was not entirely abolished, however, 
for Section Nine specifically provided that every person 
paying public taxes in any town entitled to representation 
could vote in that town. 

How the statement of residential qualification affected the 
practice of non-residence representation in North Carolina 
is beyond the province of this study, which is supposed to 
extend only over the provincial period. The next constitu- 
tion of the state, that of 1868, brought North Carolina into 
harmony with most of her sister states in requiring a repre- 
sentative to be a resident of the county from which he was 
chosen. ^^ 



'8 This Constitution retained among other quaUfications for senators, however, that 
the one elected "shall usually have resided in the district from which he is chosen one year 
immediately preceding his election". The wording of this requirement was not changed 
in the last Constitution, that of 1875. 



SOUTH CAROLINA 

In the chapter on North Carolina several documents were 
mentioned and quoted which bear as closely on the legislative 
history of South Carolina as they do on that of its northern 
neighbor. These were: 

1. Charter of 1663. 

2. Declarations and Proposals of 1663. 

3. Charter of 1665. 

4. Concessions and Agreements of 1665. 

5. Fundamental Constitutions of 1669 and 1670 

All that has been said in the preceding chapter on the above 
instruments applies here. We only need to note in passing 
that the first charter contained the germ of the South Carolina 
legislature as truly as it did that of North Carolina and that 
the proprietors made a much more determined effort to put 
the Fundamental Constitutions into effect in South Carolina 
than in her sister colony. 

Sir John Yeamans was appointed governor of 

. . . "the County of Clarendon, near Cape Faire. . . ." ^ 

in 1665. This was the settlement of Barbadians which the 
proprietors had in mind in issuing the Concessions and Agree- 
ments. Yeamans had jurisdiction over all the southern part 
of the province of Carolina. In an attempt to attract colonists 
from England, the proprietors published a description of the 
colony in 1666. One of the advantages pictured was that the 
colonists chose 

. . . "annually from among themselves a certain number of 
men according to their divisions" 

as an assembly.^ This attempt at settlement was abandoned 
in 1667. 

About this very time the Earl of Shaftsbury became the 
most active proprietor. He was especially interested in the 
southern part of the province. So the proprietors began 

IN. C. Col. Recs., I, 97. ^ Ibid., I, 157. 

215 



216 SOUTH CAROLINA 

laying plans for a settlement at Port Royal. It was in this 
connection that Shaftsbury had Locke prepare a form of 
government for the whole province but with the new settle- 
ment especially in mind. The preparation of such an in- 
strument shows that the proprietors, like those of Penn- 
sylvania and the Jerseys, thought they could anticipate the 
course of natural political development and could mould the 
political forms and practices of the colony in advance.^ This 
attempt on the part of the proprietors was doomed to failure 
but they did not desist for many years. At every attempt to 
put any of the provisions of the Fundamental Constitutions 
into effect the colonists fell back upon that provision of the 
charter of 1663 which promised that legislation was to be by 
the proprietors 

with the advice, assent and approbation of the 
freemen of the said province." ^ 

Sir John Yeamans, although living in Barbadoes, was still 
nominally the governor of Carolina. So when the settlers 
constituting the new attempt at colonization left England, 
in July, 1669, he was sent a governor's commission in blank 
with authority to insert the name of one who he thought 
would satisfactorily administer the affairs of the province. 

Yeamans named William Sayle. The commission then read : 

"To our trusty and Welbeloved Will. Sayle, Esq. Gover- 
nor of all that Territory or parte of our Province of Carolina 
that lyes to ye Southward & Westward of Cape Carteret. . . ." ^ 

Accompanying this commission were instructions which took 
cognizance of the fact that the Fundamental Constitutions 
could not be put into operation immediately. So for the time 
being Sayle was instructed: 

. . . "to summon ye freehoulders of ye Collony & require 
you in our names to elect twenty persons, wch together wth 
our Deputys for ye present are to be yr Parliament " ^ 

Sayle did not carry out the above instructions for the reason, 
as he later stated, that the population of the province was 

•Osgood. II, 211. 'N. C. Col. Recs., I. 23. 

'Shaftsbury Papers: Coll. Hist. Soc. of S. C, V, 117. 
s Ibid., V, 120. 



SOUTH CAROLINA 217 

. . . "nott heere sufficient to elect a Parliement." 

Dissatisfaction with the governor's failure to act resulted in 
election writs being issued by two individuals who had no 
authority to do so. The parliament which was elected at this 
election was the first one in South Carolina. It met in July, 
1670. Since the election was not legally called the governor 
did not recognize it. This body is often referred to as "Mr. 
Owens' Parliament".'' The first legal Parliament met in 
August, 1671, after the arrival of Governor Joseph West. 

In 1682 instructions were received from the proprietors 
ordering the creation of three counties: Berkeley, consisting 
of the territory around Charleston; Craven in the northern 
part of the province; and Colleton in the southern part. 
Prior to this all elections had been held in Charleston, but 
now Berkeley and Colleton each were to elect ten deputies 
and elections in the latter county were to be held at London 
(Wilton). To make it impossible for one to vote in both 
counties, elections were to be held in each on the same day. 
This order aroused a storm of protest, especially in Berkeley 
County, and the governor disregarded it and held the next 
election as usual. 

Attention has been called in the chapter on North Carolina 
to the fact that the appointment of Philip Ludwell, as governor 
in 1691, marked an attempt on the part of the proprietors to 
unite both parts of the province under one executive and one 
assembly. His instructions after reciting that the patent from 
the crown gave the proprietors the right to legislate with the 
approbation and consent of the freemen instructed him when- 
ever he thought there was need of laws — 

". . . to Issue writs to the Sheriffs of the respective 
Countyes to choose twenty Delegates for the freemen of 
Carolina, viz. five for Albemarle County five for Colleton 
County and five for Berkeley County and five for Craven 
County to meet and in such place and in such time as you . . . 
shall think fit. . . ." » 

Sections Twenty-one and Twenty-two set the bounds of the 
counties mentioned above, while Sections Twenty-four and 

' Shaftsbury Papers: Coll. Hist. Soc. of S. C. V, 176. ' N. C. Col. Recs., I, 377. 



218 SOUTH CAROLINA 

Twenty-five provided representation for new counties as fast 
as they were formed. 

"And as other Countys come to be planted and make it 
appear there is forty free holders in the County you are to 
issue Writs in such Countys for the choice of four Delegates 
also to represent them in the generall Assembly of the freemen 
of the Province and before any County have forty free holders 
so as to have Writs directed to it for the choice of Repre- 
sentatives for the county they reside in they are to give their 
votes for the choice of delegates in the county next to them 
that is qualified to choose Delegates." ^ 

As soon as some new county availed itself of this privilege of 
representation the representation of the four counties specified 
by name was to be reduced to four each. 

Additional instructions issued the same day to Ludwell 
ordered that if it proved to be impracticable for Albemarle 
County to send delegates to the assembly, Berkeley and 
Colleton should choose seven each and Craven six for the 
general assembly 

. . . "of that part of our province that lyes south and west 
of Cape Fear." 

This arrangement was to continue until new counties were 
formed and the instructions could be put into effect.^" The 
issuance of such instructions practically amounted to an 
abandonment of the effort to put the Fundamental Con- 
stitutions into effect. A contest soon developed between the 
governor and the assembly and the latter drew up a set of 
grievances. Number six of these was: 

"That the Representatives or delegates of the People are 
too few in the Assembly and that the People doe not appoint 
the number of their delegates according to the King's most 
gracious Charter." ^^ 

Some time in 1692, whether before or after the adoption of 
the set of grievances we do not know, an act was passed re- 
garding elections. ^^ As we do not have a copy of this its 

s N. C. Col. Recs., I, 378. " Rivers, 434. 

"/fcid., I, 380-381. 12 statutes at Large (Cooper Ed.), II, 73. 



SOUTH CAROLINA 219 

provisions must be surmised from the reasons given by the 
proprietors for vetoing it. Referring to this particular law, 
in a communication dated April 10, 1693, they said: 

". . . which act enabling all persons that take oath that 
they are worth tenn pounds, to give their vote for members 
of General Assembly, and all the members of the Assembly 
for the present being chosen for the Counties, we are of opinion 
they ought all to be freeholders that elect, and those act, 
not mentioning how long any person worth tenn pounds must 
have been an Inhabitant of the County before he be admitted 
to vote for members of the Assembly, it is so loose that by this 
Act all the Pyrates that were in the Shipp that had been 
plundering in the Red Sea had been qualified to vote for 
Representatives in Carolina. . . ." ^^ 

It is clear from the above that the act of 1692 had bestowed 
the privilege of suffrage and in all probability the right to be 
elected to the assembly upon every freeman who was worth 
ten pounds.^* 

The veto of the act of 1692 evidently made the people of 
the province all the more determined to decide the qualifica- 
tions of electors and members of the general assembly them- 
selves. In November, 1695, Governor Archdale in an election 
writ to the High Sheriff of Berkeley County says that despite 
all his endeavors to settle 
. . . "This Province in Peace and tranquility" 

he had been frustrated 

. . . "by the obstinate majority of the House of Commons." 

The writ then continues 

"We, therefore, hereby, dispensing with our Power to us 
Granted by our Charter, and former Precedents, Command 
you to Summon all . . . the freemen Inhabitants of 
Berkly County to . . . appear at Charleston, on 19th 
day of December next, then and there by a majority of their 
voices to agree to and ascertain the number of their Repre- 
sentatives for this part of the Province, to consult and advise 

'3 Rivers, 437. 

i< This same year the assembly gained the right of sharing the initiation of legislation 
with the governor and council. 



220 SOUTH CAROLINA 

with us about making such laws as shall be necessary for the- 
safety and defence of this Province " ^^ 

It should be noted that this summoned all the freemen to 
the election of 1695. The assembly which was chosen at that 
election passed an election act.^^ The qualifications for 
electors were: twenty-one years of age; ownership of fifty 
acres of land or personal property to the value of £10; three 
months residence in district where vote was offered. No 
alien born out of allegiance to the queen was eligible to a seat 
in the house. Evidently other qualifications of members were 
the same as for electors. 

The next election act was in 1704. The qualifications for 
electors were the same as in the act of 1696. This act, like its 
predecessors, did not prescribe the voting districts nor state 
the number of representatives allotted to each county.^'' 

By the act of 1716 the parish was made the election unit 
of South Carolina. ^^ McCrady says this act 

. . . "established the peculiar parish system of South 
Carolina which was to last for a century and a half." 

Elections were to be held in each parish by the church wardens. 
The number of members of the Commons House of Assembly^* 
was placed at thirty and apportioned among the parishes. 
The qualifications prescribed by the act of 1704 were modified. 
An elector must be a white man, twenty-one years of age, 
professing the Christian religion, and must have resided in the 
province six months. The freehold qualification was removed 
but the money qualification raised to £30. In order to be 
qualified to sit as a member of the house one must be possessed 
of £500 current money in goods or chattels or owner of 500 
acres of land. The voter could only vote for members from 
the parish wherein he actually resided and the one elected 
must have the required financial holdings or freehold in the 
parish choosing him. 

" Rivers, 439. 

"Statutes at Large (Cooper Edition), II, 130; McCrady, South Carolina under 
the Proprietary Government, 424. 

»' Statutes at Large, II, 249. " Ibid., II, 563. 

'» This body had different names at different periods. Lower House and Commons: 
House of Assembly were the ones most commonly used. 



SOUTH CAROLINA 221 

Under date of July, 1718, the proprietors ordered the 
•governor among other things to 

"Annul also, the two following acts: the one entitled an 
act to keep inviolate and preserve the freedom of elections 
and appoint who shall be deemed and adjudged capable of 
choosing and being chosen, members of the Commons House 
of Assembly; . . ."2*' 

McCrady is the authority for the statement that this meant 
going back to the old system of holding all elections at Charles- 
ton.^^ The dissatisfaction aroused over the veto of the election 
law and some others led directly to the loss of the colony by 
the proprietors. 

In the meantime the last assembly to meet under the 
proprietary government passed another election law.^^ The 
change in qualifications for both electors and representatives 
was slight. An elector must be possessed of a freehold of 
fifty acres or must be paying tax on £50 of personal property. 
One so qualified could vote for representatives for the parish 
where he actually resided. The property qualification for 
representatives was also slightly raised to five hundred acres 
of land and six slaves^^ or houses, buildings, town lots, or other 
lands in any part of the province to the value of £1,000. This 
act also increased the membership of the house to thirty-six 
and reapportioned this number among the parishes. 

The first royal governor of South Carolina was Francis 
Nicholson. He was commissioned in September, 1720,^^ 
but did not arrive in the province until May, 1721. His 
instructions^^ were elaborate, comprising ninety-six sections 
and were the basis of the instructions to succeeding governors. 
These did not alter the election laws of the province, the only 
reference to the assembly being 

. . . "Members of Assembly to be elected by freeholders 
only." ^« 

»» Coll. Hist. Soc. of S. C, 1, 166. . . . This referred only to the Act of 1716 which 
bore this double title. 

"p. 632. 

"Statutes at Large (Cooper Ed.), Ill, 50-55. 

" The only colony in which this form of property was enumerated as necessary to 
qualify for public office. 

» Coll. Hist. Soc. of S. C, II, ISO. 

^Ibid., II, 145-148. i' Ibid., II, 145. 



222 SOUTH CAROLINA 

The first assembly to meet Nicholson passed an election 
act (1721).^'' There were two changes in qualifications for 
electors. The requirement that one must be paying tax on 
£50 of personal property was changed to 

, . . "or hath been taxed in the precedent year twenty 
shillings or is liable to such a tax the present year." 

. . . One so qualified could vote for representatives in the 
parish, 

"where he is actually a resident, or in any other 
parish or precinct wherein he hath the like qualifications." ^^ 

The necessary qualifications in order to be elected to the 
Commons House of Assembly were: 

". . . that every person who shall be elected and 
returned ... to serve as a member of the Commons 
House of Assembly, shall be qualified as followeth, viz: 
He shall be a free born subject of the Kingdom of Great 
Britain, or of the dominions thereunto belonging, or a foreign 
person naturalized by act of parliament in Great Britain or 
Ireland, that hath attained the age of 21 years, and hath 
been resident in this Province for 12 months . . . and 
having in this Province, a settled plantation or freehold, in 
his own right, of at least 500 acres of land, and 10 slaves, or 
has in his own proper person, and in his own right, to the 
value of £1000 in houses, buildings, town-lots or other lands 
in any part of this province." -^ 

The next law on the subject was passed in 1745.^" The 
preamble warns of the danger of placing the privilege of voting 
and of being elected to the Commons House of Assembly in 
the hands of those not "amply qualified". The property 
qualification of electors was placed at three hundred acres 

. . . "on which he pays taxes or hath a freehold in houses, 
lands, or town lots, or parts thereof, of the value of sixty 
pounds proclamation money, in Charleston, or any other 
town in this province, for which he paid tax the present 
year " 

2' statutes at Large (Cooper Ed.), Ill, 135-140. 

28 The establishment of royal government was thus marked by the initiation of non- 
residence voting. 

=s statutes at Large (Cooper Ed.), IH, 137. '« Ibid., Ill, 656-658. 



SOUTH CAROLINA 223 

The privilege of voting in whatever parish one had the above 
quahfication was continued. The only change in the qualifica- 
tions for representatives was an increase in the number of 
slaves to twenty and a provision that the value of the property 
possessed must meet the legal requirement 
. . . "over and above what he owes." 

The last law on the subject of elections was passed in 
1759.^^ It made no changes in the qualifications for repre- 
sentatives, but the property qualification for electors was 
reduced. 

In checking the assembly lists for instances of non-residence, 
representation the period of 1721 to 1776 has been selected. 
It is not claimed the practice began or ended with these dates. 
It certainly did not end at 1776, for as we shall see later the 
constitution of that year was silent on the matter, while the 
one of 1778 definitely provided for non-residence representa- 
tion. It is doubtful whether non-residence representation was 
practiced to any appreciable extent as long as the unit of 
representation was the county. It doubtless did begin with the 
establishment of the parish system in 1716. The choice of 
1721 as a date from which to begin checking instead of 1716 
is due to the fact that parish representation was not firmly 
and finally established until the advent of royal government. 

Examination of the assembly lists for the years mentioned 
above reveals such a number of cases of non-residence repre- 
sentation, one hundred fourteen, that it is manifestly im- 
possible to enumerate each one in a study of this kind. Below 
are given twenty-eight cases, however, which will clearly 
show the prevalence and extent of the practice. These 
twenty-eight have been selected because each man was 
prominent in South Carolina afifairs, while some of them 
played an important part in the transition period from 
province to statehood. 

Othneal Beale was a well known Charleston man, being 
colonel of a regiment of Charleston militia. ^^ He represented 

" statutes at Large, IV, 98-101. 

=2 8. C. Historical and Genealogical Magazine, II, 136. 



224 SOUTH CAROLINA 

St. Philip's Parish in 1731 and 1733.^3 In 1739 he was elected 
to represent St. Thomas and St. Denis but refused to qualify. 
From 1745 to 1747 he again represented St. Philip,^^ and in 
1751 he was elected by Prince William's Parish but refused 
to qualify.^^ 

Edmund Bellinger, of Charleston, represented St. Andrew's 
Parish from 1731 to 1733.^^ In 1748 he was elected to repre- 
sent Prince William but refused to qualify. In 1749-50 he 
was chosen to represent St. Bartholomew, and in 1762 was 
again elected to represent Prince William, ^^ but in both cases 
he declined to serve. 

Daniel Blake, a prominent planter of the province, lived 
at Newington and in Charleston.^^ Within a space of eight 
years he represented four different parishes: St. Stephan, 
1754-55; Prince William, 1755-56; St. Bartholomew, 1757- 
58; St. George, Dorchester, 1760-1762.^9 

Miles Brewton, a Charleston merchant and later active in 
Revolutionary matters,^" was first elected a representative 
by St. Andrew in 1763-64, but refused to serve. In 1765 he 
represented St. Philip's, Charleston; in 1771, St. John, 
Colleton; and in 1772 and 1773, St. Michael." 

Robert Brewton was a Charleston resident and was at one 
time Powder Receiver of the province.^^ He began his 
legislative experience as a representative of St. Philip's, 
Charleston, in 1733. From 1740 to 1742 he represented 
Christ Church, and in 1745 and 1746 St. Thomas and St. 
Denis.^^ 

Thomas Broughton was a Charleston resident but he had 
an estate which was probably in St. John's Parish, Berkeley. 

"Assembly Journal (1728-Sept. 1733). 609; (1733-1734), 6. 
>*Ibid.. XII, 135; XXI. 1; XXII, 6. 
"Ibid., XXVII, 23. 

"Ibid. (1728-Sept. 1744), 609; (1733-1734), 6. 
"Ibid., XXIII, 120; XXV, 44; XXXV, 6. 
»»S. C. Mag., I, 160. 

"Assembly Journal, XXX, 60; XXXI, 3; XXXII, 1; XXXIV, 1. 
«»S. C. Mag., I, 143. 

«i Assembly Journal, XXXVI, 41; XXXVII, Part 2. 1; XXXVIII, 460; XXXIX, 
Index. 

«>S. C. Mag., II, 130, 131. 

"Assembly Journal (1733-1734), 6; XIII, 235; XIV, 4; XVII, Preface; XXI. 1, 233. 



SOUTH CAROLINA 225 

In 1725 he was elected representative by St. John and St. 
Thomas and St. Denis, but he chose to represent St. John. 
He later represented the same parish in 1742, 1743, and 1746.^^ 
William Bull was one of the most prominent men of the 
province during the first half of the eighteenth century. He 
was a graduate of Leyden in medicine. The family estate was 
Ashley Hall on the Ashley River in St. Andrew's Parish. He 
was a member of the Commons House of Assembly con- 
tinuously from 1739 to 1750. During that time he was 
chosen speaker several times. He represented his home 
parish from 1739 to January, 1742, and again in 1746-47.*^ 
The other parishes he was elected to represent at different 
times were: 

St. John, Berkeley, (Sept.) 1742 to 1743. 

Prince William 1745. 

Prince William 1748. 

St. Bartholomew 1748 and 1749. 

(Chose to represent the latter in 1748.) 

Prince William 1749. 

(This year he chose to represent Prince William.)"*^ 

Sir John Colleton, whose plantation was Fair Lawn in 
St. John's Parish, Berkeley ,^^ represented that parish from 
1762 to 1764, but in 1765 represented St. Helena.*^ 

Daniel Crawford, of Charleston, was chosen as repre- 
sentative by several of the outlying parishes before he ever 
represented a parish of his own city, St. Philip's, in 1757 to 
1759. Prior to those dates he had been elected by Prince 
Frederick in 1742, 1748, 1749 and 1749-50 (refused to qualify 
for the last two sessions) , and by St. James, San tee, in 1 746-47,*^ 

Thomas Drayton, one of the most prominent men in early 
South Carolina history, lived most of the time^" on his planta- 
tion on the Ashley River in St. Andrew's Parish. He repre- 

" Assembly Journal, VII. 83; XVIII, 3; XIX, 1; XXIII, 1. 
"Ibid., XII, 95; XIII, 245; XIV, 4; XVII, Pref.; XXII, 3. 
"/6»d., XVIII, 3; XIX, 1; XXI, 1, 37; XXIII, 22, 25, 32; XXIV, 32, 36, 48. 
"S. C. Mag., I, 337. 

"Assembly Journal, XXXV, 1; XXXVI, 17; XXXVII, Part 2, 1. 
"Ibid.,XVlU,3; XXII, 3; XXIII, 1; XXIV, 118; XXV, 27; XXXII, 1; XXXII, 
Part 2, 0. 

»« It should be borne in mind that most of the wealthy planters of South Carolina 
had a Charleston residence in addition to their plantation residence or residences. 
15 



226 SOUTH CAROLINA 

sented his parish continuously from 1739 to 1745. In 1746 
(March) he was chosen by both St. James and St, Paul. He 
chose to represent St. James. From 1746 to 1748 he repre- 
sented his home parish, but in 1749 he was elected representa- 
tive by both it and Prince William but he chose to serve for 
his home parish. For the session of 1749-50 he was again 
elected by these two parishes but he again chose to represent 
the parish where he resided.^^ 

Christopher Gadsen, merchant and planter and one of the 
best educated men in the province, later prominent in the 
Revolution,^^ represented St. Philip's, Charleston, probably 
his home parish in seven assemblies between 1757 and 1773,^^ 
but in 1762 and again in 1765 he represented St. Paul's 
Parish. 5'* 

David Graeme, of Charleston ,^^ represented Christ Church 
Parish continuously between 1754 and 1761. At the election 
for the assembly of 1760-61, however, he was also elected by 
Prince William but chose to represent Christ Church. ^^ 

James Graeme was a prominent royal official having been a 
member of the council and chief justice of the province. In 
(September) 1742 and again in 1743 he represented St. 
Philip, Charleston. From 1749 to 1751 he represented St. 
George, Dorchester. ^^ 

The place of residence of Edward Harleston can not be 
positively stated but it was probably in the parish of St. 
Thomas and St. Denis. He represented that parish from 
1745 to 1747. In the election for the assembly of 1746-47 he 
was also elected by St. John, Berkeley, but he chose to repre- 
sent St. Thomas and St. Denis. The next year (1748), how- 
ever, he did represent St. John.^^ 

" Assembly Journal XII, 95; XIII. 245; XIV, 4; XVII. Pref. XXI, 1, 348, 367, 451; 
XXII, 3; XXIV, 26, 418; XXV, 1, 147. 

" Coll. His. Soc. of S. C, IV. 

"Assembly Journal, XXXII, 1; XXXII, Part 2, 1; XXXIII, Part 2, 3; XXXVII, 
Part 3, Pref.; XXXVIII, 8; XXXIX, 1; XXXIX, Part 2, Pref. 

6* Ibid., XXXV, Part 2, 1; XXXVII, Part 2, 1. 

» S. C. Mag., Ill, 62. 

"Assembly Journal, XXX, 263; XXXI, 3; XXXII, 27; XXXII, Part 2, 0; XXXIII, 
Part 2, 7. 

^^ Ibid., XVIII, 3; XIX, 1; XXIV, 89; XXV, 1; XXVI, 5. 

^'Ibid., XXI, 1, 226; XXII, 3, 10, 95; XXIII, 1. 



SOUTH CAROLINA 227 

David Hext, of Charleston,^^ had such a long and varied 
career as a representative in the assembly that it will be given 
in outline form. He represented : 

St. James, Goose Creek 1739. 

1740. 

1740-41, 
(Jan.)... 1742. 

St. John, Berkeley (Sept.) 1742. 

Prince Frederick 1745. 

Prince Frederick (Jan.) 1746. 

(Chose to represent Prince Frederick.) 

St. Bartholomew (Jan.) 1746. 

St. PhiHp, Charleston 1746 to 

1751. 

In 1751-52 he was chosen a representative by St. John, 
Colleton, but refused to qualify.^" 

Major Elias Horry, of Prince George Parish, was much in 
demand as a representative, but he seems to have been very 
averse to serving judging from the number of times he re- 
fused to qualify. He was first elected a representative by 
St. James, San tee, in 1740, but refused to qualify. In 1743 
he was chosen by his own parish but again refused to qualify .^^ 
But in 1745 and 1746 he did represent his home parish. In 
1746-47 he was again elected by St. James, Santee, and again 
refused to qualify, but at the new election which was ordered 
to fill the vacancy he was again elected and evidently took his 
seat. In 1748 he was reelected by St. James, Santee, but 
refused to qualify. For both the session of 1749 and the one 
of 1749-50 he was elected by Prince Frederick but both times 
he refused to serve.^^ 

Ralph Izard, of Burton, St. George's Parish,^^ was first 
elected representative by St. Bartholomew in 1745. In 
January, 1746, he was elected by both St. Helena and St. 
George, Dorchester, but refused to qualify for either. In 

'»S. C. Mag., VI, 35. 

«« Assembly Journal XII, 95; XIII, 245; XIV, 4; XVII. Pref.; XVIII, 3; XXI, 1, 
85, 90, 101; XXII, 3; XXIII, 1; XXIV. 8; XXV, 1; XXVI, 5; XXVII, 202. 
"/6«(i., XIII, 422; XIX, 49; XXII, 97. 

" Ibid., XXI, 1, 232; XXII, 3, 272; XXIII, 122, 330; XXIV, 18; XXV, 27. 
•>S. C. Mag., II, 233. 



228 SOUTH CAROLINA 

the assembly of 1746-47 he did serve for St. George, Dor- 
chester, and was again elected by that parish in 1748 but 
refused to serve. From 1756 to 1761 he represented St. 
George, Dorchester, continuously.^'* 

Another member of the Izard family who had a long 
record as a representative was Walter Izard. He lived at 
Cedar Grove in St. George Parish. His name sometimes 
appears in the records of the time as Walter Izard, Jr., or 
Colonel Walter Izard, His legislative experience began by 
his representing his parish in 1746. In 1749-50 he represented 
Prince William, and in 1754-55 and again in 1755-56 St. 
James, Goose Creek. In the election for the assembly of 
1757-58 he was elected both by his own parish and by St. 
James, Goose Creek. He chose to serve for his own parish.^^ 

Captain John Lloyd, who lived in Amelia Township^® 
now Calhoun County and who took an active part in the 
military affairs of the province, represented St. Helena from 
1748 to 1751. For the session of 1754-1755 he was chosen by 
both St. Andrew's Parish and St. John, Colleton. He took 
his seat as a representative of the latter and continued to 
serve for it until 1757 when he declined to serve after being 
elected for that session.^'^ In 1768 and again in 1769 he repre- 
sented St. Michael's Parish. 

Gabriel Manigault, a Charleston merchant, and a member 
of one of the best known families of the province, first served 
in the assembly for St. Philip's parish in 1733 and again in 
1745. In 1748 and from 1751 to 1753 he represented St. 
Thomas and St. Denis. For the session of 1751-52 he had also 
been elected by St. Philip's but had chosen to serve for St. 
Thomas and St. Denis.®* 

Peter Manigault, also a Charleston resident, began his 
legislative experience by serving for his home parish, St. 

"Assemblyjournal, XXI, 1.35. 53, 79; XXII, 3; XXIII, 16.48; XXXI, 5; XXXII, 
1; XXXII. Part 2. 0; XXXIII. Part 2. 3. 

''Ibid., XXI. 79; XXV, 543; XXX, 2; XXXI, 2; XXXII, 1, 5. 

"S. C. Historical and Genealogical Magazine, III, 98. 

"Assembly Journal, XXIV, 34; XXV, 1; XXVI, 5; XXX, 17, 20, 31; XXXI, 3; 
XXXII, 1. 

"/itd., XXI, 1; XXIII, 1; XXVII, 5, 8, 33; XXVIII, 5. 



SOUTH CAROLINA 229 

Philip's, in 1755-56, but from that date until 1772 he repre- 
sented St. Thomas and St. Denis almost constantly. During 
seven years of this time he was the speaker of the house.^^ 

Isaac Mazyck, of Charleston, had one of the longest 
legislative records of any man in the province and certainly 
the most varied record as a non-resident representative. 
From 1740 to 1742 he represented his home parish, St. Philip's. 
In September, 1742, however, he was elected by three parishes, 
St. Philip's, Prince George, Winyaw, and St. John, Berkeley. 
He chose to serve for Prince George. In 1745 he represented 
Prince Frederick. In the session of 1746-1747 he was elected 
by St. John, Berkeley. ''° While serving for the latter he was 
elected in January, 1747, as the representative of St. James, 
Goose Creek. He chose, however, to continue to serve for 
St. John. In 1748 he was again elected by three parishes, 
Prince Frederick, St. James, Santee, and St. John, Berkeley. 
He chose to serve for the first one mentioned. Prince Frederick 
elected him again in 1749, but he refused to qualify. He did 
represent that parish the following session but refused to 
qualify for the session of 1750-51. In the session of 1752-53 
he represented St. James, Goose Creek, and in that of 1756-57 
St. Thomas and St. Denis. From 1758 to 1771 he represented 
St. John, Berkeley, almost continuously." 

The election of James Michie as a member of the Commons 
House of Assembly could scarcely have been possible in any 
other colony. Michie was a royal official, an appointee of the 
crown, yet he represented St. Philip's in six assemblies, two 
of which he was speaker. Moreover, for two of these as- 
seinblies he was chosen by outlying parishes, St. Helena in 
1751 and Prince William in 1754,''2 but in each case he chose 
to serve for St. Philip's. 

Henry Middletown, who lived at Middletown Place, '^^ 

«» Assembly Journal, XXXI, 3; XXXII-XXXIX. 

■"Ibid., XIII, 245; XIV, 4; XVII, Preface; XVIII, 3, 15, 17, 25, 40; XX, 1; XXII, 
3, 270, 283. 

" Ibid., XXII, 3, 270, 283; XXIII, 1, 9, 11, 13, 32; XXIV, 18; XXV, 1; XXVI, 5; 
XXVIII, 5; XXXI, 25; XXXII, 1; XXXIII, Part 2, 3; XXXV, 1; XXXVII, Part 
2, 1; XXXVIII, 29, 470. 

■'"Ibid., XVIII. 3; XIX, 1; XXVII, 5, 91; XXVIII, 1; XXX, 2, 24. 

"S. C. Magazine, I, 239. 



230 SOUTH CAROLINA 

was perhaps the largest landholder in South Carolina. It is 
said he had fifty thousand acres distributed among twenty 
plantations and manned by eight hundred slaves. He never 
represented any parish but St. George, Dorchester, for which 
he served in six sessions of the assembly between 1742 and 
1756,'^^ but in 1749 and again in 1749-50 he was elected to 
represent St. James, Goose Creek, but each time he refused to 
qualify.''^ 

Another prominent member of the Middletown family was 
Thomas Middletown. He was a merchant, banker, and 
planter, and made his home at Charleston and Beaufort." 
His early years in the assembly were as a representative from 
St. James, Goose Creek. He represented this parish from 
1742 to 1748. From 1751 to 1753 and again in 1755 he repre- 
sented St. Bartholomew. In 1757 and 1758 he was elected 
for Prince William and for the session of 1760-61 he was chosen 
by both Prince William and St. Helena. He chose to repre- 
sent the former. In 1762 he was elected by both St. Philip 
and St. Michael, but chose to serve for the latter.'^'' 

William Moultrie represented St. John, Berkeley, con- 
tinuously from 1751 to 1759.''^ In 1761 and again in 1762 he 
represented Prince Frederick, and in 1763 St. Helena. In 
1765 he was again chosen to represent Prince Frederick, but 
did not take his seat as he removed from the province to be- 
come Chief Justice of East Florida.'^ 

Charles Pinckney, a Charleston lawyer, represented 
Christ Church Parish from 1753 to 1759. In 1760 he repre- 
sented St. Philip's; from 1761 to 1765 he was one of the 
representatives of St. Michael's, while from 1768 to 1773 he 
represented St. Philip's again. ^'' 

"Assembly Journal, XVIII-XXXI. 

■•^Ibid., XXIV, 24; XXV, 194, 213. " S. C. Magazine, I, 261. 

"Assembly Journal, XVIII, 3; XIX, 1; XXI, 1; XXII, 3; XXIII. 1; XXVII, 5; 
XXVIII, 5; XXXI, 3; XXXII, 1; XXXIV. 1. 3; XXXV, 1, 5. 

■"Ibid., XXVII-XXXII. 

"/6t<i.. XXXIV, 236; XXXV, 1; XXXVI, 256; XXXVII, 8. 

^"Ihid., XXX, 4; XXXI, 3; XXXII, 1; XXXII-Part 2, 0; XXXIII, Part 2. 3; 
XXXIV, 1; XXXV. 1; XXXVII, Part 2. 1; XXXVII, Part 3. Preface; XXXIX, 1; 
XXXIX, Part 2, Preface. 



SOUTH CAROLINA 231 

Andrew Rutledge was another Charleston lawyer who had 
a long career as representative in the assembly. His term of 
service covered the years 1733 to 1753.^^ During this whole 
period he served Christ Church Parish except in the assembly 
of 1745 and 1746 when he represented St. John, Colleton. ^^ 

John Rutledge, later famous because of the part he played 
in the separation of the colonies from England, served Christ 
Church Parish as a representative continuously from 1760 
to 1773.^^ In 1762 he was elected a representative by St. 
Paul's Parish but he refused to serve. ^ 

It will have been noted already that non-residence repre- 
sentation was practiced in South Carolina to a greater extent 
than in any of her sister colonies. What is the explanation of 
this? In the first place we have already noticed that whenever 
a colony or province contained a city which dominated the life 
of the province that the prominent men, lawyers, and mer- 
chants, of that city were freely used by outlying communities 
as their representatives. Charleston dominated the life of 
South Carolina as no other city in any one of the thirteen 
colonies dominated the life of its colony. 

Moreover, no other colony had such a system of estates as 
did South Carolina. It is scarcely putting the matter too 
strongly to say that practically every family of importance 
had its town home as well as its plantation home and this 
town home was, of course, in Charleston. 

Then there is one other factor which doubtless influenced 
the practice. That is the point which Professor McCrady has 
emphasized, that South Carolina was closer and in more 
frequent intercourse with England than she was with her 
sister colonies. This could not help but affect her political 
practices. 

The adoption of a Revolutionary Constitution by a colony 
or province generally ends our study of that colony. But not 
so in the case of South Carolina. The constitution of 1776^^ 
was adopted by a congress on March 26 of that year. Section 

"Assembly Journal, XIII-XXVIII. »* Ibid., XXXV, 1, 8. 

82 Ihid., XXI, 1, 224. » Statutes at Large, I, 131-132. 

" Ibid., XXXIV-XXXIX. 



232 SOUTH CAROLINA 

eleven provided for a biennial assembly which was to consist 
of the same number of members as the congress which framed 
the instrument. This number was apportioned among the 
parishes. The methods of election and the qualifications for 
electors and representatives were those of the law of 1759. 

The above constitution, like most of the Revolutionary 
ones, was hastily drawn and was not submitted to the people 
for ratification. So two years later, 1778, another constitu- 
tion was adopted which was unique from the standpoint of 
this study in that it definitely provided for non-residence 
representation. After naming the parishes of the state and 
enumerating the number of representatives to which each was 
entitled the qualifications of electors and representatives were 
stated in the following language: 

"The qualification of electors shall be that every free 
white man, and no other person, who acknowledges the being 
of a God, and believes in a future state of rewards and punish- 
ments, and who has attained to the age of one and twenty 
years, and hath been resident and an inhabitant in this state 
for the space of one whole year . . . and hath a freehold 
at least of fifty acres of land, or a town lot, and hath been 
legally seized and possessed of the same at least six months 
. or was taxable the present year ... in a sum 
equal to the tax on fifty acres of land, . . . shall be deemed 
a person qualified to vote for ... a representative, or 
representatives, to serve as a member or members in the 
senate and house of representatives, for the parish or district 
where he actually is a resident, or in any other parish or 
district in this state where he hath the like freehold . . . 
No person shall be eligible to sit in the house of representa- 
tives unless he be of the Protestant religion, and hath been a 
resident in this state for three years previous to his election. 
The qualification of the elected, if residents in the parish or 
district for which they shall be returned, shall be the same as 
mentioned in the election act, and construed to mean clear 
of debt. But no non-resident shall be eligible to a seat in the 
house of representatives unless he is the owner of a settled 
estate and freehold in his own right of the value of three 
thousand and five hundred pounds currency at least, clear of 
debt, in the parish or district for which he is elected." ^^ 

. 8« Statutes at Large, I, 140-141. 



SOUTH CAROLINA 233 

In the above it is interesting to note the very heavy 
property qualification demanded of one who wished to stand 
for election as a non-resident in comparison to the property 
qualification of a resident candidate. While the actual work- 
ing out of this new law regarding representation is beyond the 
province of this study it is quite evident that under it the vast 
majority of representatives chosen by the parishes would be 
residents. But it is just as evident also that the big plantation 
owners, who owned land in several parishes and who lived most 
of the year in Charleston, would continue to be chosen at 
times as the representatives of parishes where their holdings 
lay. Such was the law in South Carolina regarding the 
residence of representatives until Article I, Section 13, of the 
Constitution of 1865 established a residence qualification.^^ 

8' Non-residence voting had been abolished by law in 1833 (Statutes at Large, I, 199). 



GEORGIA 

The legislative history of Georgia differs from that of any 
other province. The charter to Oglethorpe and his associates 
constituting them 

. . . "The Trustees for establishing the colony of Georgia 
in America," 

gave the company the express right to make laws for the 
province. An assembly of the freemen or freeholders of the 
province was not mentioned. Under this instrument the 
people had no voice in making the laws under which they 
were governed. In fact, there were practically no laws. 
Each emergency in the province was met by specific directions 
from England. In twenty years only three laws were passed 
by the company; one relating to Indian trade, one to sale and 
importation of rum and one to slaves.^ 

As is well known, the charter of 1732 limited the authority 
of the Trustees to twenty-one years.^ After that period all 
the powers and privileges of the company in the province 
were to pass to the king. As we shall see later the trustees 
even before this period had elapsed were more than willing to 
be free from the burdens which the province brought them. 
Reference to an assembly in the charter of 1732 was probably 
purposely omitted in the hope of avoiding the contests over 
provincial matters which such a body always caused. Ex- 
perience of a few years, however, caused some members of the 
company to see the other side of the question, that is, the 
advantages of an assembly. 

The matter is first mentioned in 1750 in a report to the 
Common Council of the company by a Committee of Cor- 
respondence which had been appointed to make a complete 
study of conditions in the province and to report with sug- 
gestions as to methods of improvement. The report in brief 
was that in view of the scattered settlements in Georgia and 

1 McCain, 176. 

' Digest of English Statutes in force in Georgia (Schley Edition), 429-446. 

234 



GEORGIA 235 

the need of the trustees to be better informed regarding the 
true state of the province, the committee wished to introduce 
a set of resolutions. These read in part: 

"Resolved. 

"That an Assembly be formed and authoris'd to meet in 
the Town of Savannah in Georgia every Year at the most 
leisure time; And such time as shall be appointed by the 
President and Assistants; No such Meeting to continue 
longer than three Weeks or a month at furthest. 

"That Every Town or Village or District in the Province, 
where ten Families are settled, be empower'd to depute One 
Person, and where thirty Families are settled to depute two 
Persons to the said Assembly." ^ 

Later clauses of the resolutions stated specifically that 

. . . "The Assembly can only propose, debate and repre- 
sent to the Trustees" 

those things which were for the benefit 

. . . "not only of each particular Settlement, but of the 
Province in General". 

From this it will be seen that no body with legislative powers 
was planned. 

For membership in this body which was to meet annually 
there were to be no qualifications the first year. After 1751 
each member must have one hundred mulberry trees upon 
every tract of fifty acres which he possessed. After 1753 no 
one could be elected a member who had not conformed to the 
law limiting the number of slaves one could own in proportion 
to his white servants; who did not have at least one female 
in his family instructed in the art of reeling silk; and who 
did not produce fifteen pounds of silk yearly for each fifty 
acres which he possessed.^ Four settlements were mentioned 
by name as being of sufficient importance to be represented. 
But this list was not mandatory, simply suggestive. The 
application of the general rule regarding representation was 
to be left in the hands of the executive officer of the colony, 

»Ga. Col. Recs., II, 498-499. ^ Ibid., II, 500. 



236 GEORGIA 

which was the governor, or in his absence, the president of the 
council. 

This proposal after being approved by the Common Coun- 
cil was adopted by the Trustees, on June 26, 1750.^ Word was 
at once sent to the province and an assembly met on January 
15, 1751. It was composed of sixteen deputies representing 
eleven villages or districts. The growing demand in the 
province for a voice in their own afifairs is shown by the 
assembly's request of the privilege of making "by-laws" to 
be in force in the province until disapproved by the Trustees 
The request was not granted. This account of the first as- 
sembly of Georgia has been given not because it is integrally 
related to the assemblies which later met under royal authority 
but because it furnished several important precedents which 
were evidently taken into consideration when King George 
decided to grant the province an assembly. 

According to the terms of their charter the authority of the 
Trustees did not expire until June 9, 1753, but by June, 1752, 
they had determined to surrender the charter. In the interim, 
while a form of government was being determined upon, 
authority in the province was exercised by the president and 
assistants. In March, 1754, the Lords Committee of Trade 
and Plantations submitted a plan^ of government to the king 
which was approved in August. Captain John Reynolds was 
appointed governor and the government was transferred to 
him by the president and assistants on October 30, 1754. 

In suggesting a plan the Lords Committee gave its opinion 
that of the different constitutions in America that form of 
government in those colonies more immediately subject to 
the crown was "the most proper form of government" for 
Georgia. A council of twelve, similar in power and con- 
stitution to that of the other provinces, was suggested, and a 
governor 

. . . "with powers and directions to call an assembly to 
pass laws. . . ." 



'McCain, 191. 
•Jones, I, 460-461. 



GEORGIA 237 

As has been said above the suggested plan was adopted. 
Legislative authority was divided into three parts:' 

(1) King's Governor, 

(2) King's Council, 

(3) Commons House of Assembly. 

The formation of election districts as well as the length of 
time each member should serve were evidently left to the 
governor, an inheritance from the assembly of 1751. All 
secondary sources definitely state or imply that Governor 
Reynolds' Instructions contained the qualifications for electors 
and for members of the Commons House of Assembly.^ 

Shortly after arriving in the province Governor Reynolds 
issued writs to twelve communities or villages for the election 
of eighteen representatives. The writs contained the qualifica- 
tions for both electors and representatives. To vote one had 
to be twenty-one years of age and be in possession of fifty 
acres of land in the parish or district where he offered to vote. 
To be eligible for election as representative one had to own 
five hundred acres in any part of the province.^ The above 
are the familiar royal requirements for suffrage ; permitting 
both non-resident voting and non-resident representation. 

The assembly which met in response to the above call, 
convened at Savannah, January 7, 1755. Although the 
people of Georgia had had no legislative experience the first 
assembly took a position, almost from its opening day, which 
brought it into line with the other provincial assemblies and 
also brought it into conflict with the governor. This was the 
assertion of its right to pass on the qualifications of its mem- 
bers. Governor Reynolds said of them: 

". . . they expect to have the same privileges as the 
House of Commons in Great Britain." ^^ 

On January 29, a Remonstrance and Address to the king was 
drawn up asking for the privilege of determining the suffrage 

'Ga. Col. Recs., XIII, 3. 

« I have failed to find the Instructions. They do not appear in the Georgia Colonial 
Records, neither is such a manuscript listed by Professor Andrews as being in the Public 
Record Office. (Annual Report American Historical Association, 1913, 321-406.) 

•Ga. Col. Recs., XIII, 3. >» Doyle, I, 405. 



238 GEORGIA 

qualifications of the province. ^^ Later a memorial was 
adopted complaining of the qualifications under which the 
members of the first assembly were elected. The burden of 
this complaint was that it both disfranchised and made in- 
capable of being elected representative those whose property- 
happened to be located in a town. Stevens says this was 
remedied but nothing appears in the records regarding it.^^ 
In fact, the first and only law on the subject of suffrage re- 
tained the original requirements. 

The law referred to was passed in 1761. Its title was: 

. . . "An Act to ascertain the manner and fform of electing 
Members to represent the Inhabitants of this Province in 
the Commons House of Assembly".'^ 

The preamble stated the manner of electing and the qualifica- 
tions of electors and members had never been determined by 
law. The qualifications for voting were : twenty-one years of 
age; six month's residence in the province; legal possession 
of fifty acres of land in the "Parish, District, or Village" 
where one offered his vote. In addition the elector was 
compelled to make oath that his freehold had not been made 
over to him on purpose to qualify him for voting. 
The qualifications for a representative were: 

"That he shall be a free-born subject of Great Britain or 
of the dominion thereunto belonging or a fToreign person 
Naturalized professing the Christian Religion and no other 
and that hath arrived at the Age of Twenty One Years and 
hath been a Resident in this Province for twelve Months 
before the date of the said Writ and being legally possessed 
in his own Right in this Province of a Tract of Land con- 
taining at least fftve Hundred Acres." ^* 

It will be noted that this law did not change suffrage 
requirements from those laid down in the writs issued by 
Governor Reynolds. As this was the only election act passed 
by the Georgia legislature prior to the Revolution non- 
residence representation was legal in the province from the 

" Ga. Col. Recs., XIII, 42. ■' Ga. Col. Recs., XVIII, 464-472. 

12 Stevens, I, 412. " Ibid., XVIII, 467. 



GEORGIA 239 

first assembly until the Constitution of 1777. Investigation 
shows that it was also practiced to a considerable degree. 
Before giving the instances of non-residence representation 
it has been thought wise to make a statement about the 
districts represented in the Commons House of Assembly. 
The parishes have all disappeared as have many of the 
villages which were represented prior to 1775, The following 
table contains the places, either parishes or settlements 
within the parishes, with their positions on a modern map, 
which were represented during the period under consideration : 

Christ Church Parish: 

1. Savannah. 

2. Acton, rural settlement south of Savannah on Vernon 

River. 

3. Vernonburg, rural settlement south of Savannah on 
Vernon River. 

4. Sea Islands. At mouth of the Savannah. 

5. Little Ogeechee. Settlement on river of that name 
twenty miles south of Savannah. 

St. Matthew's Parish: 

1. Abercorn. Fifteen miles above Savannah on river. 

2. Ebenezer. Three miles south of Abercorn. 

3. Goshen. Ten miles south of Ebenezer. 

St. George's Parish. Now Burke County. 
1. Halifax. Now Waynesborough. 

St. Paul's Parish: 

1. Augusta. 
St. Philip's Parish: 

1. Great Ogeechee. Settlements on that river. In- 
cluded Ossabaw Island. 

St. John's Parish. Now Liberty County. Included St. 
Catherine's Island. 

1. Midway. 

2. Sunbury. 



240 GEORGIA 

St. Andrew's Parish. Now Mcintosh County. Included 
Sapelo Island. 
1. Darien. 

St. James' Parish. St. Simon's Island. 
1. Frederica. 

St. David's Parish. Northern Part Glynn County. 

St. Patrick's Parish. Southern Part Glynn County. 

St. Thomas' Parish. Northern Part Camden County. 

St. Mary's Parish. Southern part Camden County with 
islands adjoining. 

The instances of non-residence representation which 
follow have been grouped into two classes: 

(a) Those showing representation of different settlements, 
within the same parish. 

(b) Those showing representation of different parishes or 
of settlements within different parishes. 

Philip Box, whose place of residence is uncertain, repre- 
sented Vernonburg in 1768 and Acton in 1769 and 1771. 
These were neighboring settlements on the Vernon River.^^ 

Jonathan Bryan, a prominent resident of Savannah^^ 
and later active in Revolutionary matters, represented Little 
Ogeechee in 1770 and Savannah in 1771 and 1772. '^^ 

Lewis Johnson, whose place of residence cannot be defin- 
itely determined, is an example of both kinds of non-residence 
representation. In 1755 and 1756 he represented Abercorn 
and Goshen, respectively.^^ These places were both in St. 
Matthew's Parish, but in 1761 Johnson represented Savannah, 
which was in Christ Church Parish.^^ 

Noble W. Jones, colonel of the provincial militia, and a 
prominent resident of Savannah ,2" also furnishes an example of 
both kinds of non-residence representation. He represented 

» Ga. Col. Recs., XIV, 590; XV. 6, 303. " Ibid.. XIII, 7, 81. 

" Stevens, II, 104; Knight, I, 331. " Ibid., XIII, 472. 

" Ga. Col. Recs., XV, 228, 304, 320. " Stevens, II, 104; Knight, II, 228. 



GEORGIA 241 

Acton in 1755-56; Ebenezer in St. Matthew's Parish in 1760; 
and Savannah from 1761 to 1769.^^ 

Henry Young represented the Islands in 1755-56; Vernon- 
burg in 1763; and the Islands again in 1772.^2 

George Baillie (Bailly), who lived either in Savannah or 
near there,^^ seems to have been in demand as a representative 
by distant parishes. In 1764 he was elected by St. Paul's but 
declined. In 1772 he was elected by both Vernonburg and 
St. Thomas' Parish. He chose to serve for the latter. He 
was reelected by St. Thomas' the following year but declined 
to serve. ^* 

Edward Barnard, of Augusta,^^ started his legislative ex- 
perience by serving in the first assembly from Halifax. After 
1760 he continuously represented either Augusta or the parish 
of St. Paul. 26 

Elisha Butler, of Savannah ,2^ was one of the largest land- 
holders of the province. He represented Ogeechee in 1755 
and 1757; St. Philip's Parish in 1761, and was elected from 
Ebenezer in 1764 but declined to serve.^^ 

Within four years Samuel Farley, whose place of residence 
is not certain, represented settlements in three different 
parishes: Ebenezer in 1769; Great Ogeechee in 1771; and 
The Islands in 1772.2^ 

Sir Patrick Houston was Registrar of Grants and Receiver 
of Quit Claims. As the only titled man in the province it is 
not strange that he was elected to the assembly. He lived 
most of the time in Savannah but had a country seat nine 
miles south .3'' He was first elected by Vernonburg in 1764. 
In 1769 he was chosen by St. Andrew's Parish; in 1771 by 
both the parish and Darien but he declined. The next year 
the same places reelected him and he served.^* 

" Ga. Col. Recs., XIII, 7, 81, 433, 472; XIV, 137, 589; XV, 303, 320, 326. 
««Ibid., XIII, 7, 81; XIV, 18; XV, 336. 

" Knight, II, 265. " Ga. Col. Recs., XIV. 87; XV, 327, 364. 

"Knight, I, 882. 

"Ga. Col. Recs., XIII, 7, 433, 540; XIV, 158; XV, 303, 320, 515. 
"Wilson, 43. 

"Ga. Col. Recs., XIII, 68, 81, 474; XIV, 168. 
"Ibid., XV, 6, 303, 320. 

" Knight, I, 388. " Ga. Col. Recs., XIV, 137; XV, 21, 308, 336. 

16 



242 GEORGIA 

William Jones, whose place of residence cannot be defi- 
nitely fixed, represented St. John's in 1765; St. John's and 
Midway in 1768, and St. George's in 1772.^2 

John Mulryne, of Savannah,^' was an ardent royalist. 
He served in the assembly for the Islands in 1765, 1768, and 
1769. In 1761, however, he served for St. John's Parish, and 
in 1763 was elected for the villages of Abercorn and Goshen 
but declined to serve. ^* 

Peter Sailers served for three different parishes within a 
space of five years. St. John's in 1768; St. Patrick's in 1772; 
and St. Thomas' in 1773.^^ 

John Simpson, a resident of Savannah,^^ served for either 
Frederica or Frederica and St. James' Parish combined from 
1765 to 1769. In 1772, however, he represented St. George's.^^ 

Alexander Wylly was a prominent man of the province 
and was speaker of the assembly at one time. His place of 
residence cannot be definitely located but everything points 
to Savannah. In 1761 he represented St. George's Parish, and 
in 1764 and again in 1768 Savannah.^* 

William Young, of Savannah, ^'^ began his career as a 
legislator by representing an out-lying district, Ebenezer, in 
1768. In October, 1769, he served for his home town but the 
next month he appears as a representative for St. Andrew's 
Parish. Later, in 1771 and 1772, he again served for Sa- 
vannah.^" 

The large number of instances of non-residence repre- 
sentation in Georgia, within a space of twenty years, from 
the first legislature to the point where the records are not 
complete and reliable, is striking. And yet it is not surprising 
when one keeps in mind two or three things. 

First, the theory of suffrage and representation in the prov- 

82 Ga. Col. Recs., XIV, 233, 616; XV, 336. 

" Stevens, II, 106. 

"Ga. Col. Recs., XIII, 561; XIV, 74, 259, 589; XV, 7. 

» Ibid.. XIV, 590; XV, 320, 404. 

»t Stevens, II, 106. 

" Ga. Col. Recs., XIV, 227, 494; XV, 18, 336. 

"Ibid., XIII, 546; XIV, 137, 613. 

"Stevens, 11, 107. 

"Ga. Col. Recs., XIV, 589; XV, 6, 21, 303, 320. 



GEORGIA 243 

ince was purely English since the rules governing both ques- 
tions were made in England and imposed upon the province. 

In the second place, settlements were widely scattered and 
it was no easy task to get to the seat of government. Since 
non-residence representation was not only allowed, but 
encouraged, by the high property qualification for a repre- 
sentative, it was often the easier thing to do to elect some man, 
known in the settlement through his holdings there, but re- 
siding nearer the capital of the province. 

And thirdly,- the development of one town of the province, 
far beyond any other town, so that it was not only the legal 
capital but the real center of provincial life, meant that the 
professional men and wealthy planters living there furnished 
a fine field from which outlying districts could draw their 
representatives. The large number of Savannah men who 
served for other places show how often this was done. 

By the constitution of 1777 county representation was in- 
troduced. Parishes were renamed or combined into counties. 
Each county, with exceptions of two or three special cases, 
was given ten representatives. A residential qualification 
was established by Section Six which read : 

"The representatives shall be chosen out of the residents 
of each county, who shall have resided at least twelve months 
in this state, and three months in the county where they 
shall be elected; except the free-holders of the counties of 
Glynn and Camden, who are in a state of alarm, and who 
shall have the liberty of choosing one member each, as specified 
in the articles of this constitution in any other county, until 
they have residence sufficient to qualify them for more: 
And they shall be of the protestant religion, and of the age 
of twenty-one years, and shall be possessed in their own 
right of two hundred and fifty acres of land, or some property 
to the amount of two hundred and fifty pounds." ^^ 

" While a freehold qualification for suffrage was retained, Section Eleven provided 
that no person had more than one vote and that must be cast where he resided. 



CONCLUSION 

Since a summary of the practice of each state regarding non- 
residence representation has been given at the close of each 
chapter not much remains to be said. Perhaps it will be well 
to outline briefly what was the practice of each state. 

New Hampshire: Non-residence representation was prac- 
ticed only when the towns of the province were represented 
in the Massachusetts General Court. A residential require- 
ment was included in the Constitution of 1783. 

Massachusetts: Practiced extensively from the beginning 
of the colony until forbidden by law of 1693. 

New Plymouth: No non-residence representation. 

Rhode Island: Practiced extensively throughout its 
colonial period. A residential requirement was included in 
the Constitution of 1783. 

New Haven: No non-residence representation. 

Connecticut: Practiced extensively throughout the 
whole colonial period. Not forbidden until the Constitution 
of 1818. 

New York: Practiced throughout its whole provincial 
period despite the law of 1699, forbidding it. No residential 
requirement for representatives to-day. 

New Jersey: Not practiced prior to 1702. Between 1702 
and 1710 several citizens of New York who owned large 
tracts of land in New Jersey sat in its assembly. A residential 
qualification established in 1710. 

Pennsylvania: No non-residence representation. 

Delaware: No non-residence representation. 

Maryland: No non-residence representation. 

Virginia: No non-residence representation except during 
the period of reaction, 1676-1692. 

North Carolina: No non-residence representation during 
the proprietary period and for several years thereafter. After 
1743 it was practiced until the Constitution of 1777 virtu- 
ally ended it. Absolutely prohibited by Constitution of 1868. 

244 



CONCLUSION 245 

South Carolina: Practiced extensively throughout colonial 
period and into period of statehood. Forbidden by Con- 
stitution of 1865. 

Georgia: Practiced from the assembly 1755 until forbidden 
by Constitution of 1777. 

A careful reading of the list just given will show three con- 
tiguous provinces in which there was never any non-residence 
representation, the proprietory provinces of Pennsylvania, 
Delaware, and Maryland. In all the other colonies (excepting 
New Plymouth and New Haven) non-residence representation 
was practiced at some time in its history. 

The above fact suggests that there may have been a 
difference in the origin and constitution of the legislatures of 
the different kind of colonies. That was the case. 

It is doubtful if very many of those interested in planting 
colonies in America in the seventeenth century ever foresaw the 
development of the legislature as an integral and necessary 
part of the colonial political machinery. While they had the 
example of Parliament before them it is hardly probable that 
this suggested to them representative assemblies. Later it 
is true, however, that legislatures fighting for their rights and 
privileges often called attention to the privileges of Parlia- 
ment. So it is within the realm of probability, at least, to 
say that the colonial legislatures developed as a result of social 
and political conditions in the colonies. As conditions and 
circumstances differed from colony to colony so no two 
legislatures assumed the same form and political practice 
differed materially from colony to colony. 

In the corporate colonies the legislature was simply an en- 
largement and development of the stockholders meeting of 
the corporation. 

In the proprietary colonies it was an instrument used by 
the proprietors to make more easy their task both of getting 
colonists and of keeping them contented after they had them. 

In the royal provinces it was a piece of administrative 
machinery, grudgingly granted by the crown, for the reason 



246 CONCLUSION 

that administration of government would have been practically 
impossible without it. 

The variations in political practice from colony to colony 
resulted in some surprising similarities between colonies of 
opposite type and vice-versa. For example, in the two extra- 
royal colonies of New York and South Carolina we have found 
the custom of using non-resident representatives, in imitation 
of the practice of the mother country, was common and long 
continued. But why should that practice have been followed 
just as extensively by the corporate colonies, Massachusetts, 
Rhode Island, and Connecticut? and why should Virginia, 
which is usually pointed out as an ideal example of royal 
administration, have consistently opposed the practice? 
These are questions which only a study of the whole social 
background of colonial life can answer. 

One fact, however, stands out very clearly in connection 
with the subject of representation in the colonial legislatures. 
That is that in the beginning, except in three colonies, it was 
property not people which was represented. In the provinces 
settled by Penn and Calvert a new idea crept into the meaning 
of the word "representation" but the older idea asserted itself 
as soon as the influence of the original proprietors weakened. 

The proof of the above is the steady and insistent pressure 
which was brought to bear by royal authority for the estab- 
lishment of a property qualification for electors. Royal in- 
structions and commissions iterated and reiterated that 
election must be by "freeholders". 

It was in the distinctly royal colonies that this idea of 
representation found its greatest expression in practice. In 
New York and South Carolina the assemblies were dominated 
by wealthy men, living in the capital city, sometimes mer- 
chants and lawyers, but always great land-holders. In th-e 
latter, this condition seems to have been accepted as a matter 
of course, but in the former, where the practice was con- 
tinually being challenged, we find the arguments by which it 
was justified. "Could not one vote wherever he owned 
property?" "If not, was that not taxation without repre- 



CONCLUSION 247 

sentation?" "In fact, did not one (legally) live wherever he 
had an estate?" In these questions we get at the heart of the 
prevalent English conception of representation ... a con- 
ception which had been brought to America by practically 
every English colonist. 

But there are unmistakable signs that a feeling soon 
became manifest that this conception of representation was 
not adequate to meet the problems of a new country. For we 
find the legislatures steadily lowering the freehold qualifica- 
tion for voting; gradually bringing the words "free man" and 
voter nearer and nearer together. 

While this point had not been reached by any colony at 
the end of the colonial period, in most of them the comple- 
mentary idea was firmly planted that no man, in the colony, 
regardless of wealth, social position, or attainments could as 
efficiently serve as a representative in the colonial legislature 
for a given district as one who lived within that district and 
understood its people and its problems. 



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